Cunningham v. Cunningham

• Decision Date: 21 December 1897
• Citation: 28 S.E. 525,121 N.C. 413
• Parties: CUNNINGHAM v. CUNNINGHAM et al.
• Court: North Carolina Supreme Court

28 S.E. 525

121 N.C. 413

CUNNINGHAM v. CUNNINGHAM et al.

Supreme Court of North Carolina

December 21, 1897

Appeal from superior court, Transylvania county; Norwood, Judge.

Action by Eliza Cunningham against John Cunningham and others to set aside a deed. From a judgment for plaintiff, defendants appeal. Affirmed.

Action for land, tried before Norwood, J. In the complaint the plaintiff alleged that the land was bought with her own money, and that, in making the deed, it was, by mistake or fraud, executed to her husband, instead of herself. The material allegations were denied in the defendants' answer. Issues: "(1) Did plaintiff purchase and pay for with her own money the land described in the complaint? Ans. Yes. (2) Was the title wrongfully made to her husband Charles Cunningham? Ans. Yes. (3) Did plaintiff pay for the improvements put on said lot with her own money? [This issue was withdrawn from the jury, and the defendants excepted.]" Judgment: "It is ordered and decreed that the legal title should be in the plaintiff, and that defendants are hereby declared trustees for the benefit of plaintiff, and ordered to convey to her, by deed, all their right, title, and claim in said land. It is further adjudged that the effect of this judgment shall be to transfer to the plaintiff and her heirs the legal title to the land described to be held by her in the plight, condition, and estate as though the conveyance ordered was in fact executed, and shall bind and entitle the parties ordered to execute or to take benefit of the conveyance in and to all such provisions conditions, and covenants as may be adjudged to attend the conveyance, in the same manner and to the same extent as the conveyance would if the same were executed according to the order; and the party taking benefit under the judgment may have the same redress at law on account of the matter adjudged as she might on conveyance if the same had been executed; and that plaintiff recover costs. [Signed] Norwood J." Defendants appealed.

Evidence that a hotel waiter was seen on a train, and stated that he was going to New York to act as head waiter in a hotel there and that he had not been seen since, justified the court in admitting his deposition in evidence on the ground of his absence from the state.

The evidence of the plaintiff was to the effect that she married Charles Cunningham in 1888, and he has since died, intestate, and without issue, and the defendants are his heirs at law; she bought the land in dispute from one Duckworth, and paid for the same with money alleged to be her own, and that, through mistake or through a fraud practiced by her husband, the deed was made to him, instead of to her; that besides the money she used in the payment for the land, there was also other personal property which she turned over to the grantor, Duckworth; and that the same was sufficient to pay the purchase price. It was also in evidence that the plaintiff's husband spent most of his money on himself. "Albert Waiters, who was head waiter at the Oakland Heights Hotel, saw me give $30 to my husband to make the last payment on the land. The last time I saw Waiters was in Asheville, when this deposition [which was also introduced in evidence] was taken. I know that he is gone from Asheville, and do not know where he is. He said that he was going North, to be a head waiter in an hotel. I think he said at Cincinnati." Defendants objected to the plaintiff's stating what Waiters said. Objection overruled, and defendants excepted. Upon the plaintiff's offering the deposition, objection was made by defendants, on the ground that plaintiff had not shown that Waiters was more than 70 miles from the court, and that he is out of the state. Objection overruled, and defendants excepted. Thereupon the deposition was read, giving an account of the services rendered by the plaintiff and deponent at an hotel in Asheville, and that deponent paid wages to plaintiff in the presence of her husband, without objection from him, and that she rejoiced that she had made her last payment on her home. A number of witnesses were examined for the plaintiff, and for the defendants also. The defendant John Cunningham, the brother of the husband of plaintiff, testified, in substance, in behalf of defendants, that his brother was a stout man, and not a drinking man, and earned money for himself, and to the same effect was the testimony of other witnesses. The plaintiff also introduced the deed from Duckworth and wife to her husband, dated December 5, 1888. Defendants demurred to the evidence of the plaintiff, and the motion was overruled, and defendants excepted.

At the conclusion of the evidence, the defendants asked the court to charge the jury that, according to all the evidence, the plaintiff was not entitled to recover. Refused, and defendants excepted. Defendants, in writing, asked the court to charge the jury as follows: "(1) That the husband is entitled jure mariti, absolutely, and in his own right, to the services of his wife, and to the fruits of her industry whether exerted in his own affairs or in those of a stranger; and that if Eliza Cunningham worked as a husband, and earned wages, the said wages belonged to and were the property of her husband; and if she delivered her wages to her husband, and he used the same to pay for the land, and took title to himself, the land became the property of the husband, and plaintiff cannot maintain this action to have the heirs at law of her deceased husband declared trustees of the legal title for her benefit." Refused, and defendants excepted. "(2) That there is no evidence competent and sufficient to go to the jury that the husband at any time consented that the earnings of his wife should be her own, and constitute her separate property." Refused, and defendants excepted. "(3) That the burden is on the plaintiff to prove by a preponderance of testimony that her husband agreed that her earnings should be her own property, and constitute her separate estate,...