Bundy v. Sutton

• Decision Date: 12 December 1934
• Docket Number: 331.
• Citation: 177 S.E. 420,207 N.C. 422
• Parties: BUNDY v. SUTTON et al.
• Court: North Carolina Supreme Court

177 S.E. 420

207 N.C. 422

BUNDY v. SUTTON et al.

No. 331.

Supreme Court of North Carolina

December 12, 1934

Appeal from Superior Court, Pitt County; Frizzelle, Judge.

Action by W. J. Bundy, guardian of J. W. Sutton, Sr., in which J. W Sutton was substituted in his own behalf, against Sarah E Sutton, deposed guardian of J. W. Sutton, Sr., and others. From an adverse judgment, defendants Sarah E. Sutton and others appeal.

New trial ordered.

Where plaintiff is not entitled to recover on any aspect of case trial judge may dismiss action despite jury's verdict and where plaintiff is entitled to recover as matter of law irrespective of jury's answer to certain issues, judgment will not be upset because judge struck out answer to issues and substituted answer of his own.

Prior to 1927, the plaintiff J. W. Sutton, Sr., was the owner of certain land in Pitt county, containing approximately 350 acres, and ten teams, farming implements necessary to cultivate a twenty-horse farm, and had on hand approximately 100 bales of cotton. In addition, it was alleged that he had approximately $3,000 in cash on deposit in the National Bank of Greenville. In the fall of 1927, the mind of J. W. Sutton, Sr., became impaired. Thereupon his wife, the defendant Sarah E. Sutton, was duly appointed guardian for her husband, and she undertook as such to operate the farm. Mr. and Mrs. Sutton had several children, to wit, Joe Sutton, Guy Sutton, Charlie Sutton, Bessie Willoughby, Fannie Lloyd, James Sutton, Clara Todd, and Roy Sutton. In the spring of 1930, Mrs. Sarah Sutton was removed as guardian and Mr. L. W. Tucker was appointed receiver of the estate of the incompetent in May, 1930. After Tucker was appointed receiver, by virtue of an order of court, he was authorized and directed to borrow the sum of $6,500 to be used in operating and cultivating the lands of J. W. Sutton, incompetent. Thereupon the receiver executed and delivered a deed of trust to W. H. Woolard, trustee, for the Greenville Banking & Trust Company. This deed of trust is dated February 23, 1931, and covered land, crops, "with all teams, including twelve mules now on said farm, and farming utensils." The deed of trust to Woolard, trustee, contained a power of sale in the event of default and was duly registered. The note for $6,500 was indorsed by the defendant H. L. Hodges.

The receiver paid approximately $3,000 of said indebtedness, but was unable to pay the remainder, amounting to $3,500. Thereafter, in January, 1932, the defendant Woolard, trustee, under the deed of trust heretofore mentioned, advertised the land and personal property for sale. At the sale, the defendant Nora Patrick, through her attorney, the defendant F. M. Wooten, appeared and bid the sum of $2,597 for the land. Within ten days after such sale, the defendant Virginia-Carolina Chemical Company raised the bid as provided by law, and the land was readvertised and sold on March 10, 1932, at which sale the defendant J. H. Waldrop, cashier of the Greenville Banking & Trust Company, bid the sum of $2,750. No increased bid was placed upon the purchase price and Waldrop having assigned his bid to Joe Sutton and Guy Sutton, Woolard, trustee, executed and delivered to Joe Sutton and Guy Sutton a deed for the land. The personal property was sold on February 2, 1932, and was purchased by W. H. Dail, Jr., for the sum of $310.

Thereafter on March 28, 1932, Joe Sutton and Guy Sutton executed and delivered to W. H. Woolard, trustee, a deed of trust upon the land to secure a note of $3,331.83, payable to H. L. Hodges, at the Greenville Banking & Trust Company. This deed of trust covered the land and personal property theretofore sold by Woolard, trustee. On the same date the said Joe Sutton and Guy Sutton executed and delivered to F. M. Wooten and F. C. Harding a mortgage securing a note of $1,750 to Nora Patrick, a note for $450 to H. L. Hodges, and a note for $2,153.70 to the Virginia-Carolina Chemical Company.

Subsequently, plaintiff W. J. Bundy was duly appointed guardian of J. W. Sutton, Sr., and instituted the present action against all the defendants, alleging in substance that all the defendants named entered into a conspiracy and "did unlawfully, illegally and fraudulently collude and connive together to the end that the appeal from the order dissolving the restraining order should be abandoned, that the trustee, W. H. Woolard, should proceed with the sale of the lands, that the said J. H. Waldrop should place a bid on the land just a little higher than the raised bid of the Virginia-Carolina Chemical Corporation, that in time he should transfer and assign his bid to Joe and Guy Sutton, for whom in fact he was to do the bidding, and that none of the other defendants would place any bid on said lands, and that they would suppress the bidding on said lands and let the said Joe and Guy Sutton bid same in as aforesaid, that the Greenville Banking & Trust Co. would immediately, upon closing of the sale, accept from the said Joe and Guy Sutton, note or notes, secured by deed of trust on said lands for the full amount of the indebtedness at the time of the sale and carry same for them, that the said Joe and Guy Sutton, after executing to the bank said paper for the amount of the bid or what was due at the time of the sale on note held by the bank, would then execute to F. M. Wooten and F. C. Harding, trustees, a deed of trust on said lands to secure the payment of notes for the amount claimed to be owing to Virginia-Carolina Chemical Co. and Nora Patrick by Sarah E. Sutton, guardian of J. W. Sutton, and that they would further secure the amount claimed to be owing to H. L. Hodges, or in other words they unlawfully and illegally connived and colluded together to change the title to said lands without the payment of one cent of money by the purchasers and that each and every one who professed to hold a claim should be secured by a mortgage on the lands to be executed by the purchasers, regardless of what the lands brought at the sale, and regardless of whether the purchasers were indebted to those to whom they were to give security or not. In pursuance of said unlawful, illegal and fraudulent connivance and collusion on the part of said defendants the said trustee did in fact re-advertise said lands * * * and thereafter the said J. H. Waldrop did unlawfully, illegally and fraudulently * * * transfer and assign said bid to Joe and Guy Sutton," etc. After suit was instituted by Bundy, J. W. Sutton was duly and legally declared to be sane, and, upon his petition, it was ordered that he be made a party plaintiff to the suit.

The defendants filed answers denying any conspiracy or unlawful agreement to deprive J. W. Sutton of his lands, and at the trial much evidence was offered by both sides.

When the plaintiff rested, all the defendants moved for judgment of nonsuit. This motion was allowed as to the defendants F. M. Wooten and F. C. Harding, and denied as to all other defendants.

The following issues were submitted to the jury:

"Did the defendants, Sarah E. Sutton, Joe Sutton, Guy Sutton, Greenville Banking & Trust Company, W. H. Woolard, trustee, H. L. Hodges, J. H. Waldrop, Nora Patrick and Virginia-Carolina Chemical Corporation, illegally and fraudulently collude and conspire together to suppress the bidding at

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