Farmers' Bank of Clayton v. McCullers

• Decision Date: 07 October 1931
• Docket Number: 117.
• Citation: 160 S.E. 494,201 N.C. 440
• Parties: FARMERS' BANK OF CLAYTON v. McCULLERS et al.
• Court: North Carolina Supreme Court

160 S.E. 494

201 N.C. 440

FARMERS' BANK OF CLAYTON v. McCULLERS et al.

No. 117.

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.

No error.

See also, 160 S.E. 497.

Civil action instituted by Farmers' Bank of Clayton, judgment creditor of Nellie Horne McCullers, to set aside two alleged voluntary conveyances and purported confession of judgment alleged to have been executed and entered by the said Nellie Horne McCullers in favor of her husband, E. H. McCullers fraudulently and with intent to delay, hinder, and defeat the rights of plaintiff and other creditors. See case as stated on first appeal in 200 N.C. 591, 157 S.E. 869.

Under peremptory instructions that, if the facts were found to be as shown by all the evidence, the issues should be answered in favor of the plaintiff, the jury returned the following verdict:

"1. Was the deed from Nellie Horne McCullers to her husband, E. H. McCullers, dated November 30, 1928, recorded in Book 211, page 68, Registry of Johnston County, void for failure to comply with C. S. § 2515? A. Yes.

"2. Was the deed from Nellie Horne McCullers to her husband, E. H. McCullers, dated November 30, 1927, recorded in Book 211, at page 82, Registry of Johnston County, void for failure to comply with C. S. § 2515? A. Yes.

"3. Was the judgment dated Feb. 28, 1929, recorded in Judgment Docket 14 at page 237, in the office of the Clerk of the Superior Court of Johnston County, confessed by Nellie Horne McCullers in favor of her husband, E. H. McCullers, void for failure to comply with C. S. § 2515? A. Yes."

It is conceded that the deeds in question, executed by the wife to the husband during coverture, were not probated as required by C. S. § 2515.

The confession of judgment and judgment entered thereon are in words and figures as follows:

"North Carolina--Johnston County.

"In The Superior Court--Before the Clerk.

"Dr. E. H. McCullers 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 Dr. E. H. McCullers, plaintiff for the sum of $2600.00, with interest from this date --, and authorize the entry of judgment therefore against me on February 28th, 1929.

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

"Balance due on account of money advanced by said Dr. E. H. McCullers for affiant from time to time to take care of obligations due by this affiant at banks, which said sum is due to the plaintiff by the defendant over and above all just demands that she has against him.

"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 February 28, 1929.

"Weisner Farmer, N. P. [N. P. Seal]

"My com. exp. 8--17--29.

"North Carolina--Johnston County.

"In the Superior Court.

"Dr. E. H. McCullers v. Nellie Horne McCullers

"Judgment

"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, Dr. E. H. McCullers, recover of the defendant, Nellie Horne McCullers, the sum of $2,600.00, with interest from this date.

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

"H. V. Rose, C. S. C."

From a judgment declaring the deeds 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.

Parker & Lee, Abell & Shepard, and Ed. F. Ward, all of Smithfield, for appellee.

STACY C.J.

It is conceded that the deeds in question, executed between husband and wife during coverture, which purport to affect or change the real estate of the wife, were not probated as required by C. S. § 2515, in that the officer in each instance failed to certify in his certificate of probate that at the time of its execution and the wife's privy examination such contract was "not unreasonable or injurious to her." This omission renders the deeds void. Capps v. Massey, 199 N.C. 196, 154 S.E. 52; Caldwell v. Blount, 193 N.C. 560, 137 S.E. 578; Garner v. Horner, 191 N.C. 539, 132 S.E. 290; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Whitten v. Peace, 188 N.C. 298, 124 S.E. 571.

It may be doubted whether a confession of judgment, made, assigned, and verified by a wife during coverture in favor of her husband, is required to be probated according to the provisions of C. S. § 2515. Judgments by confession differ from judgments by consent (Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350), in that the court exercises a certain amount of supervision over their entry and equitable jurisdiction over their subsequent status. Farwell v. Huston, 151 Ill. 239, 37 N.E. 864, 42 Am. St. Rep. 237; 15 R. C. L., 647. The manner and method of their confession and entry are regulated by statute and not by agreement or consent of the parties. Smith v. Smith, 117 N.C. 348, 23 S.E. 270; Note, 12 L. R. A. 810; 15 R. C. L., 647, 34 C.J. 97.

But, without making definite decision on this point, the confession of judgment seems to be void on its face for another reason; hence it would serve no useful purpose to send the case back, even if the reason assigned for vacating it be erroneous. Rankin v. Oates, 183 N.C. 517, 112 S.E. 32. "A new trial will not be granted where the action of the trial judge, even if erroneous, could by no possibility injure the appellant." Butts v. Screws, 95 N.C. 215.

A judgment by confession, without action, may be entered of record, either in term by the judge, or out of term by the clerk, (1) for money due or to become due, or (2) to secure against contingent liability, or (3) for both such debts and liability. C. S. § 623; Sharp v. R. R., 106 N.C. 308, 11 S.E. 530, 19 Am. St. Rep. 533.

It is essential to the validity of such a judgment, however, that it be confessed and entered of record according to the provisions of the statute, i. e., a statement in writing must be made, signed, and verified by the defendant, setting out the amount for which judgment may be entered, and authorizing the entry of judgment therefor. C. S. § 624, subsec. 1. If the confession be for money due or to become due, the statement must contain concisely the facts out of which it arose, and must show that the sum confessed is justly due, or to become due. C. S. § 624, subsec. 2. If the confession be to secure against contingent liability, the verified statement must give concisely the facts constituting the liability, and must show that the sum confessed does not exceed the same. C. S. § 624, subsec. 3. If the confession be for both such debts and liability, the statement must set forth concisely the facts out of which the debts arose, and must show that the sum confessed therefor is justly due, or to...