Foster v. Moore

• Decision Date: 25 January 1933
• Docket Number: 483.
• Parties: FOSTER v. MOORE et ux.
• Court: North Carolina Supreme Court

167 S.E. 383

204 N.C. 9

FOSTER v. MOORE et ux.

No. 483.

Supreme Court of North Carolina

January 25, 1933

Appeal from Superior Court, Mecklenburg County; Cowper, Special Judge.

Action by Baxter Foster, by his next friend, Mrs. Nannie Foster against Fred Moore and wife. Judgment for the plaintiff, and the defendants appeal.

Error.

Deed absolute on its face, but only intended as security, is fraudulent as to creditors of grantor.

Baxter Foster, a minor, was injured in an automobile wreck on July 8, 1930. On August 6, 1930, Baxter Foster, through his mother as next friend, the plaintiff in this action, brought an actionable negligence case against the defendant Fred Moore. On November 4, 1931, the plaintiff recovered judgment against the defendant Fred Moore for $2,500, and costs. The judgment is duly recorded in the clerk's office of Mecklenburg county, N. C., in accordance with law, and is not paid. Pearl Moore is the wife of Fred Moore. On September 3, 1930, Fred Moore conveyed to his wife, Pearl Moore, by deed certain real estate which he owned. This action is brought to set aside the deed as null and void, on the ground of fraud.

The plaintiff alleges in part: "That the defendant, Pearl Moore, did not pay to the defendant, Fred Moore, for said deeds, a sufficient consideration, and in fact did not pay therefor any consideration whatever. That in making said conveyances the defendant, Fred Moore, did not retain sufficient property for the payment of his then existing debts. That the conveyance of said property by the defendant Fred Moore, to his wife, the defendant, Pearl Moore, was arranged and planned for the purpose of fraudulently avoiding liability to his creditors, and for the purpose of having the title to his property vested in his wife in order that the claims of creditors might be delayed, defeated and defrauded. That the said deeds from Fred Moore to his wife, Pearl Moore are void and of no effect, as against the plaintiff herein to whom the liability of the defendant, Fred Moore, in the sum of $2,500.00 and costs arose prior to the execution, delivery and registration of said deeds. Wherefore, the plaintiff prays:--That the deed from the defendant, Fred Moore, to his wife, the defendant, Pearl Moore, recorded in the Mecklenburg Public Registry in Book 786, page 179, be set aside and declared null and void and of no effect as against the plaintiff, in his right to enforce said judgment by execution against the property described in said deeds; that the deed, from the defendant, Fred Moore, to his wife, the defendant, Pearl Moore, recorded in the Mecklenburg Public Registry in Book 786, page 180, be set aside and declared null and void and of no effect as against the plaintiff, in his right to enforce said judgment by execution against the property described in said deed."

The defendants deny the material allegations of the complaint above set forth, but say that "Fred Moore admits that for and in consideration of a considerable sum of money, theretofore borrowed from his wife, Pearl Moore, he conveyed to her the lots."

For a further answer and defense the defendants say: "That in February, 1930, Pearl Moore, demanded of her husband, Fred Moore, some security for the money which she had loaned him and that in compliance with the said demand, on the 15th day of February, 1930, Fred Moore executed and delivered to his co-defendant, Pearl Moore, a deed to the lots referred to in the complaint, which deed is duly recorded in the office of the Register of Deeds for Mecklenburg County, in Book 786, page 179, to which reference is hereby made. That the plaintiff's cause of action, according to the 3rd paragraph of his complaint, did not accrue until the 8th day of July, 1930, nearly 8 months after the deed Fred Moore executed to his wife, Pearl Moore, was made, which deed was made in good faith and for a valuable consideration. These defendants deny that the said conveyance to Pearl Moore was made as the result of a conspiracy between them to defeat the rights of the plaintiff in this action; that same was made in good faith, and not to defraud the plaintiff, for the reason, that at that time the plaintiff had no cause of action against the defendants; that the said deed of conveyance was made in good faith and for a consideration of about $1,600.00, and was not made to defraud the plaintiff or any other creditor of the defendant, Fred Moore. *** And prays that the said action be dismissed and that the deeds referred to be not declared null and void and set aside and that the defendants recover their costs and go without day."

The court below, on motion of plaintiff for judgment on the pleadings,...