Farmers' Bank of Clayton v. McCullers

• Decision Date: 07 October 1931
• Docket Number: 118.
• Parties: FARMERS' BANK OF CLAYTON v. McCULLERS et al.
• Court: North Carolina Supreme Court

160 S.E. 497

201 N.C. 412

FARMERS' BANK OF CLAYTON v. McCULLERS et al.

No. 118.

Supreme Court of North Carolina

October 7, 1931

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.

Mother's confession of judgment, allegedly void as to creditors stating that debt was for daughter's nursing and housekeeping services for specified period, showed apparent compliance with statutes.

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:

"North Carolina, Johnston County.

"In the Superior Court

"Melba McCullers Misenheimer v. Mrs. Nellie Horne McCullers

"Confession of Judgment

"1. I, Nellie Horne McCullers, defendant in the above entitled action, hereby confess judgment in favor of Melba McCullers Misenheimer, plaintiff, for the sum of $15,975.00 with interest from February 1, 1927, the average due date of said account, and authorize the entry of judgment against me thereof on Feb. 28, 1929.

"2. The confession of this judgment is for a debt justly due by me, the said Nellie Horne McCullers, to the said Melba McCullers Misenheimer, plaintiff, arising from the following facts, to-wit:

"3. For services rendered in nursing her mother, day and night, being companion to her mother, looking after and generally running the household for her mother from January 1, 1925, through February 28, 1929, 213 weeks at $75.00 per week (excepting three weeks in January, 1928), $15,975.00, which said sum is due to the plaintiff by the defendant over and above all just demands that she has against her.

"[Signed] Nellie Horne McCullers.

"Nellie Horne McCullers, being duly sworn, says that the facts set out in the above confession are true and the amount of judgment confessed is justly due the plaintiff.

"Sworn to and subscribed before me this 28th day of February, 1929.

"[Signed] Weisner Farmer, N. P.

"[Notarial Seal]

"My Commission expires: Aug 17, 1929.

"This cause coming on to be heard upon the confession of judgment of the said Nellie Horne McCullers, it is, therefore, considered, adjudged and ordered that the plaintiff, Melba McCullers Misenheimer, recover of the defendant, Nellie Horne McCullers, the sum of $15,975.00, with interest thereon from February

1, 1927, the average due date of said running account.

"Witness my hand and seal, this the 28th day of February, 1929.

"[Signed] H. V. Rose, Clerk Superior Court."

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:

"1. Was the deed executed by Nellie Horne McCullers to her daughter, Melba McCullers Misenheimer, March 20, 1928, recorded in Book 211, page 72, of the Registry of Johnston County, a voluntary conveyance without adequate consideration? A. Yes."

"4. Is the confessed judgment referred to in the complaint void? A. Yes."

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....