Abernathy v. Seagle
| Citation | 4 S.E. 542,98 N.C. 553 |
| Parties | ABERNATHY v. SEAGLE et al. |
| Decision Date | 23 December 1887 |
| Court | North Carolina Supreme Court |
Appeal from superior court, Catawba county; MACRAE, Judge.
A complaint, in an action to recover land, set forth that a certain person had land, which he paid for, conveyed directly to defendant for the purpose of defrauding creditors. The findings showed that the grantor conveyed to a third person who afterwards conveyed to defendant; that the deed given to the third person was in pursuance of a different contract than the one alleged in the complaint. Held a material variance, and, upon failure to amend, judgment was properly rendered for defendant.
M. L McCorkle, for plaintiff.
Hoke & Hoke, for defendant.
The complaint first filed shows the action to be for the recovery of a tract of land therein described, to which the plaintiff claims title, and whose possession the defendants wrongfully withhold. The defendant Margaret E. Seagle, who, because of her poverty, is allowed to answer without giving the bond required by law in other cases, denies that the plaintiff is the owner of the land, or acquired any estate therein, under his purchase at an execution sale, and avers the title to be in herself. At fall term, 1882, of the superior court of Catawba, a nonsuit was entered, and at the same term stricken out, and, under an order of the court, the cause continued "until the next term, and that the plaintiff pay all defendant's costs up to the present term." At fall term, 1883, the plaintiff, who had complied with the preceding order, on his application was allowed to amend upon payment of all costs, within 60 days, and the defendant given time until the next term to answer the amended complaint. At the term next following, no amendment having been made, and the cost remaining unpaid, judgment was rendered dismissing the action, and against the plaintiff and the sureties to his prosecution bond, for costs of defendants. While this order does not appear to have been revoked, and the cause reinstated upon the docket, by any action of the court, this entry is found at August term: The amended complaint was in fact put in on February 28, 1884, during spring term, and presents the case in an aspect altogether different. Its allegations, summarily expressed, are: (1) The land belonged to Jacob Jarrett, who contracted with Joseph Seagle to sell the same to him, and gave bond to make title on payment of the purchase money, and the vendee did pay most of what was due. (2) The plaintiff afterwards recovered judgment against Seagle before a justice of the peace, which was docketed in the superior court, and, at a sale under execution issuing thereon, bought the land at the price of $75,--a sum more than sufficient to satisfy the execution,--and took the sheriff's deed therefor. (3) Seagle, having paid the residue of what he was owing for the land, or it having been paid by the defendant Margaret, or one Ella Seagle, out of his money or effects, instead of having the land conveyed to himself, caused the deed to be made to said Margaret, she and said Ella being his daughters, with intent to place it beyond the reach of his creditors, and to defraud the plaintiff. The demand is to have the said Margaret declared a trustee to the amount of plaintiff's debt, and to subject the land to its payment. The answer of the defendant Margaret denies the material allegations of the complaint, or avers a want of knowledge or information sufficient to form a belief of their truth, and thereupon certain issues were made up to be passed on by the jury, which, with the response to each, are as follows: "(1) Did plaintiff recover judgment against defendant, Joseph Seagle, as set out in the complaint?" This was answered by direction of the court; it being a matter of record. ...
To continue reading
Request your trial