Battle v. Mayo

• Decision Date: 19 March 1889
• Parties: BATTLE v. MAYO et al.
• Court: North Carolina Supreme Court

9 S.E. 384

102 N.C. 413

BATTLE v. MAYO et al.

Supreme Court of North Carolina

March 19, 1889

A statement that "the plaintiff does not assent to any part of this judgment, unless where it distinctly appears in the same," and specially "to the judge's finding additional facts to those found by the referee," cannot be treated as a specific exception to the whole judgment.

Bunn & Battle, for appellant.

Strong Gray & Stamps and Gilliam & Son, for respondents.

AVERY J.

This was a civil action heard at the fall term, 1888, of the superior court of Nash county, before GRAVES, J. The plaintiff, Battle, under an order in a supplementary proceeding against the defendant James M. Mayo, instituted by T. P. Braswell & Co., judgment creditors of said Mayo, was appointed receiver on the 7th of January, 1887. Other judgment creditors of Mayo have been made parties to that proceeding.

The plaintiff alleges in the complaint: (1) That on the 14th of January, 1886, the defendants A. H. Ricks and A. L. Taylor executed three sealed notes to Carr Bros. & Co., each for the sum of $500, with interest from date at 8 per cent., payable respectively, September 1, 1886, November 1, 1886, and January 1, 1887 (2) That on each of said notes are the following indorsements:

"For value received, we hereby transfer all our interest in the within note to J. M. Mayo or order.

"January 14, 1886.

[Signed] "M. J. CARR,

"J. B. CARR."

"Pay to the order of W. T. Mayo, trustee, for F. L. Mayo.

[Signed] "JAMES M. MAYO."

--(3) That on the note maturing November 1, 1886, there is a credit indorsed as follows:

"Received December 20, 1886, one hundred and fifty-eight and 57-100 dollars ($158.57.)

[Signed] "W. T. MAYO, Trustee."

After alleging his own appointment as receiver at the date mentioned, and naming other judgment creditors who have intervened in the supplementary proceedings, the plaintiff alleges that the notes mentioned are now in his hands, and are, as far as creditors are concerned, the property of James M. Mayo; that he transferred them to his brother, the defendant W. T. Mayo, in trust for his wife, the defendant F. L. Mayo, with intent to hinder, delay, and defraud creditors, without consideration, and as a mere gift. The plaintiff demands judgment against the obligors on the notes, the defendants A. H. Ricks and A. L. Taylor, for the sum alleged to be due on the notes, and that the judgment be applied, after deducting costs and charges, to the payment of the judgments of the plaintiff creditors. Subsequently, and after vacating a judgment by default at the November term, 1887, in reference to the action above-named and three other actions brought by the plaintiff, Battle, and pending in the same court, the following order was made: "It is now, on motion of the plaintiff and with consent of the defendants, ordered by the court that the four actions be consolidated, and that J. M. Mullen be, and he is hereby, appointed a referee, under Code Civil Proc., to find all issues of law and of fact therein involved, and the defendants are to be allowed sixty days in which to file answers."

In an amended complaint consolidating the four actions, the receiver subsequently alleged that with the same fraudulent intent the defendant James M. Mayo had transferred to his said wife: (1) His equitable interest in the Williford tract of land, he having contracted to pay about $1,250 for the land, and having paid over half the price; (2) the Baker land, explained below; (3) the Ricks and Taylor notes; (4) oxen, stock, and farming utensils; (5) a piece of land of about 300 acres in Edgecombe, with stock on it; (6) the Charles Knight place, of about 40 acres. The other facts that will throw light upon the exceptions appear in the report of the referee, the exceptions, and the judgment.

REPORT OF REFEREE.

The undersigned, referee herein, begs leave to report that, from the admissions in the pleadings and the evidence deduced before him, which evidence is herewith sent, he finds:

(1) That the following judgments, obtained and docketed, as hereinafter appears, against the defendant James M. Mayo, are unpaid; that executions have been duly issued thereon, and the same returned wholly unsatisfied, to-wit: (a) Three judgments in favor of John G. Spotts and George Gibson, co-partners, trading as Spotts & Gibson,--one for $346.17, with interest from March 26, 1886, and costs, confessed in Nash superior court, and docketed therein April 23, 1886, and docketed in Edgecombe superior court about the same time; one for $101.48, with interest from April 10, 1886, and costs, docketed in Edgecombe superior court April 13, 1886, and in Nash superior court April 23, 1886; and one for $41.17, with interest from April 15, 1886, docketed in Edgecombe superior court April 17, 1886, and in Nash superior court April 23, 1886. (b) Judgment in favor of T. P. Braswell and M. C. Braswell, co-partners, trading as T. P. Braswell & Son, obtained at spring term, 1886, of Nash superior court, for $360, with interest from November 1, 1885, and costs, docketed April 26, 1886, in said court, and docketed also in Edgecombe superior court. (c) Judgments (2) in favor of the Brown Cotton Gin Company, --one for $129.15, with interest on $1.15 from November 17, 1884, and on $128 from September 16, 1885, and costs, obtained February 1, 1887, and docketed same day in Nash superior court; and one for $144, with interest from September 16, 1885, and costs, obtained and docketed February 1, 1887, as above. (d) Judgment in favor of H. Cohen and her husband, William Cohen, for $170, with interest from March 1, 1884, and costs, obtained and docketed as above, February 1, 1887. (e) Judgment in favor of Rountree, Barnes & Co., for $520.80, with 8 per cent. interest from November 1, 1885, and costs, obtained in Nash superior court, and docketed there November, 1886.

(2) That subsequent to the issuing and return as aforesaid of executions upon said judgments, to-wit, on the 18th day of December, 1886, proceedings supplementary to execution were duly instituted before the superior court clerk of Nash county by said T. P. Braswell & Son on their said judgment, the defendants herein (James M. Mayo and F. L. Mayo, his wife; Mary H. Lyon, who has since intermarried with the defendant Dr. J. C. Braswell; W. T. Mayo, V. W. Land, A. H. Ricks, and A. L. Taylor) were also duly served with the clerk's order therein. After an examination before said clerk, an order was duly made in said proceedings, January 10, 1887, appointing Jacob Battle receiver of the debts, etc., of said James M. Mayo. Said receiver duly qualified. Afterwards the other judgment creditors intervened. The orders had and made in said proceedings were duly recorded in Nash and Edgecombe superior courts. For fuller particulars, reference is had to the third section of the complaint, the allegations of which are adopted by the referee.

(3) That the defendant James M. Mayo is insolvent, and has been insolvent for more than two years prior to January 1, 1886, but before that time he was in the possession of a large real and personal estate, and was considered to be worth from fifty to seventy-five thousand dollars. He, however, early in 1885, sold most of his real and personal property to different parties, on long time, payable in annual installments, evidenced by their bonds, executed and delivered to them absolute deeds and conveyances therefor, and taking from them contemporaneous mortgages, securing their bonds for the purchase price. These bonds, amounting to about $70,000, said Mayo deposited with Rountree & Co., merchants, doing business in Norfolk, Va., to secure his indebtedness to them, then amounting to about $40,000. The property sold as above was worth about $27,000, and was sold to parties pecuniarily insolvent. Subsequently, on the 18th of March, 1886, the aforesaid purchasers having failed to comply, and having, by mutual agreement, surrendered their purchases, said Mayo and wife conveyed said property to said Rountree & Co. for the sum of $27,000, the purchase price to go as a credit upon said Mayo's aforesaid indebtedness, leaving still due thereon a balance of between sixteen and eighteen thousand dollars, which is still unpaid. A certified copy of said deed, part of the evidence herein, is made a part of this report.

(4) That said Mayo, in settlement or part payment of other creditors, conveyed and assigned to them during the early part of 1886 the balance of his property other than that in litigation in this action. He still owes upon said indebtedness two or three thousand dollars.

(5) That prior to the 2d day of February, 1886, the defendant V W. Land was bound as surety for the defendant James M. Mayo to the Pamlico Banking & Insurance Company of Tarboro, N. C., in the sum of $3,000, for money borrowed by said Mayo, originally, some time in the spring of 1885. On said 2d day of February, said Mayo deeded to said Land certain real property situate in Edgecombe county, for $2,500. A certified copy of said deed in evidence is made a part of this report. Said deed was twice recorded,--first, February 22, 1886; and, second, March 10, 1886. See certified copies. About same time said Mayo deeded to said Land a tract of land in Bertie county, worth $1,500; but at the time the same was in litigation, and Land was to pay and has paid the expenses attending that litigation. Land was to pay for the above property by assuming and paying the bank debt, and paying the wife (the defendant F. L. Mayo) of said Mayo $1,000, Mayo claiming that he was indebted to her. Shortly after said conveyances, said Land and said Mayo confessed judgment to the bank, the bank refusing to release Mayo. Land has paid the bank debt down to about...