Farmers' Bank Of Clayton v. Mccul-lers
Decision Date | 07 October 1931 |
Docket Number | No. 118.,118. |
Citation | 160 S.E. 4987 |
Court | North Carolina Supreme Court |
Parties | FARMERS' BANK OF CLAYTON v. McCUL-LERS et al. |
Appeal from Superior Court, Johnston County; Sinclair, Judge.
Action by the Farmers' Bank of Clayton against Nellie Horne McCullers and another. Judgment for plaintiff, and defendants appeal.
New trial.
See, also, 160 S. E. 494.
Civil action instituted by Farmers' Bank of Clayton, judgment creditor of Nellie Horne McCullers, to set aside an alleged voluntary conveyance and purported confession of judgment, alleged to have been executed and entered by the said Nellie Horne McCullers in favor of her daughter, Melba McCullers Misenheimer, fraudulently and with intent to delay, hinder, and defeat the rights of plaintiff and other creditors.
On October 24, 1927, the plaintiff instituted two suits against Nellie Horne McCullers to recover on promissory notes aggregating something over $10,000. Judgments were entered in these cases for the plaintiff at the April term, 1929. Executions on these judgments were returned "nothing to be found."
During the pendency of these actions, to wit, on March 20, 1928, Nellie Horne McCullers executed a deed to her daughter, Melba McCullers Misenheimer, conveying a one-third undivided interest in the home place of the late Ashley Horne, subject to the dower right of his widow. The deed recites a consideration of $500, but in the answers filed by Nellie Horne McCullers, Melba McCullers Misenheimer, and later by Melba McCullers Misenheimer, executrix of the estate of Nellie Horne McCullers, deceased, it is alleged that said deed was executed in consideration of personal services rendered by the daughter to her mother under agreement that the deed should be executed in consideration therefor. The court excluded all evidence tending to show services rendered prior to January 1, 1925. Objection and exception. It is not claimed that any were rendered thereafter as consideration for the deed.
On February 28, 1929, Nellie Horne McCullers confessed judgment in favor of her daughter, Melba McCullers Misenheimer, of which the following is a copy of the judgment roll:
ruary 1, 1927, the average due date of said running account.
Under peremptory instructions that, if the facts were found to be as testified to by all the witnesses and as indicated by the record evidence, to answer the determinative issues in favor of the plaintiff, the jury returned the following verdict:
From a judgment declaring the deed and confession of judgment void and of no effect, and ordering their cancellation of record, the defendants appeal, assigning errors.
F. H. Brooks and Winfield H. Lyon, both of Smithfield, for appellants.
Ed. F. Ward, James D. Parker, and Abell & Shepard, all of Smithfield, for appellee.
Defendants were not permitted to show, as consideration for the deed...
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