Abernethy v. State Planters' Bank &

Decision Date08 January 1932
Docket NumberNo. 529.,529.
Citation161 S.E. 705,202 N.C. 46
CourtNorth Carolina Supreme Court
PartiesABERNETHY . v. STATE PLANTERS' BANK & TRUST CO. et al.

Appeal from Superior Court, Catawba County; Clement, Judge.

Action by Mrs. Nellie M. Abernethy against the State Planters' Bank & Trust Company and others. From an adverse judgment, plaintiff appeals.

New trial.

This is an action to have a deed of trust under which the defendants, David B. Harris and Tristam T. Hyde, trustees, have advertised for sale the lot of land described therein, adjudged void and ordered canceled.

The deed of trust purports to have been executed by plaintiff and her husband, R. O. Abernethy, to secure certain notes recited therein, now held by the defendant State Planters' Bank & Trust Company of Richmond, Va. The lot of land described in the deed of trust is located in the city of Hickory, N. C.; it is owned by the plaintiff, and is occupied by her as her home.

Plaintiff alleges in her complaint that she was induced to execute said deed of trust by false and fraudulent representations made to her by an agent of the defendants and by her husband, with respect to the land described therein; that said agent and her husband falsely and fraudulently represented to plain tiff at the time she signed the said deed of trust that the land described therein was property in the city of Hickory other than her home place.

Plaintiff further alleges in her complaint that her private examination touching her voluntary execution of said deed of trust was not taken as required by law; that the defendants, at the date of the delivery to them of said deed of trust, knew that her private examination had not been taken as required by law, and had full notice of the false and fraudulent representations by which plaintiff was induced by the agent and by her husband to execute the same.

These allegations were denied by the defendants in their answer.

The issues submitted to the jury were answered as follows:

"1. Was the execution and delivery of the deed of trust of date November 15, 1926, and of registration on pages 152 and 153 in Book 197 of the Record of Mortgages and Deeds of Trust of Catawba County, procured by means of the fraudulent representations of defendants and plaintiff's husband as alleged in the complaint? Answer, No.

"2. Was the deed of trust delivered without the execution thereof being privately and voluntarily acknowledged by the plaintiff? Answer, No.

"3. In what amount, if any, is plaintiff indebted to the defendant, State Planters Bank & Trust Company? Answer, $6,437.17, with interest from 4 May, 1931."

From judgment in accordance with the verdict, authorizing and directing the foreclosure of the deed of trust by the exercise of the power of sale contained therein, plaintiff appealed to the Supreme Court.

Louie A. Whitener, of Hickory, for appellant.

Self, Bagby, Councill, Aiken & Patrick, of Hickory, for appellees.

CONNOR, J.

This action was begun in the superior court of Catawba county on or about October 22, 1930. It was on the calendar for trial at May term, 1931, of said court. During said term and prior to the call of the action for trial, counsel for plaintiff moved that the action be continued for the term because of the illness of the plaintiff, and of her inability for that reason to attend the court and to testify as a witness in her own behalf at a trial during said term. In support of the motion, plaintiff's counsel offered her affidavit and the certificates of two...

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4 cases
  • Cleeland v. Cleeland
    • United States
    • North Carolina Supreme Court
    • October 8, 1958
    ...request for another continuance. The facts of this case do not approach the factual situation of Abernethy v. State Planters Bank & Trust Co., 202 N.C. 46, 161 S.E. 705. Could Judge Moore inquire into the present status of the children and award custody so as to promote their best interests......
  • Taft v. Dickman
    • United States
    • North Carolina Court of Appeals
    • August 6, 2013
    ...supported by the doctor's unsworn letter and Mr. Taft's representations. Plaintiffs, however, point to Abernethy v. State Planters Bank & Trust Co., 202 N.C. 46, 161 S.E. 705 (1932), and Freeman v. Monroe, 92 N.C.App. 99, 373 S.E.2d 443 (1988), as establishing that the trial court abused it......
  • Shankle v. Shankle
    • United States
    • North Carolina Supreme Court
    • April 6, 1976
    ...any legal documents' in behalf of respondents does not contradict Newnan Shankle's affidavit and statement. In Abernethy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932), during term, and prior to the call of the action for trial, the plaintiff's counsel moved that the case be continued becau......
  • Klein v. State Board of Examiners of Plumbing Heating and Fire Sprinkler Contractors, No. COA07-637 (N.C. App. 3/18/2008)
    • United States
    • North Carolina Court of Appeals
    • March 18, 2008
    ...or participate in the hearing." Petitioner's only offering of precedential authority to support this statement is Abernathy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932). In Abernathy, the plaintiff moved for a continuance because she was ill and could not attend the trial and testify on h......

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