George v. Credle

• Decision Date: 30 June 1870
• Citation: 64 N.C. 422
• Court: North Carolina Supreme Court
• Parties: Doe on dem., GEORGE V. CREDLE v. W. R. and GEORGE W. CARRAWAN.

64 N.C. 422

Doe on dem., GEORGE V. CREDLE

v.W. R. and GEORGE W. CARRAWAN.

Supreme Court of North Carolina.

June Term, 1870.

*1 Where a man, upon eve of marriage, agreed with his intended wife that a previous transaction, by which he had mortgaged a certain tract of land to one, who was a trustee for children of hers, in order to secure a part of the purchase money due for such land, should be cancelled, and that, in lieu of what was due, which exceeded the then value of such land, the land should be conveyed to such children; and this was done: Held, that this was not an act of which creditors of the husband could complain, and also, that there was nothing in the Statute (Rev. Code, c. 37, s. 24,) that required such agreement to be in writing.

( Jones v. Sasser, 1 D. & B. 452; Chesson v. Pettijohn, 6 Ire. 121; Black v. Saunders, 1 Jon. 67, approved.)

EJECTMENT, tried before Jones, J., at Spring Term 1870, of HYDE Court.

The plaintiff claimed title under a sheriff's deed, made after a sale of the lands in question by virtue of an execution against one John Cahoon, to satisfy a judgment obtained in favor of a creditor, by note dated January 1st 1855, at May Term 1857 of Hyde County Court??

The defendants claimed under a deed from the said Cahoon, dated May 15, 1855, reciting as a consideration “an agreement between myself and wife prior to our marriage,” and also, love and affection “for the said children,” the defendants, and also, five dollars.

A witness called to show what was the nuptial agreement alluded to, having answered that it was by parol,--upon objection, further evidence in regard thereto was excluded.

The defendants then offered to prove that John Cahoon, who was a second husband of the mother of the defendants, had purchased the land in question from one Benson, and in order to secure a part of the price had mortgaged the same to said Benson: that afterwards, at a time when the balance due for the purchase money exceeded the value of the land, a marriage being in contemplation betwixt Cahoon and Mrs. Carrawan, it was agreed between them that the mortgage transaction should be cancelled, and that in satisfaction of the money due for the price of the land, which although nominally payable to Benson, really belonged to Mrs. Carrawan's children the present defendants, the land should be conveyed by Cahoon to the defendants; and that this was done.

Upon objection, this evidence was excluded.

Verdict, and Judgment for the plaintiff, and Appeal by the defendants.

Carter, for the appellants .

Battle & Sons, contra .

DICK, J.

*2 The parties to this action of ejectment claim under the same person, and the question to be determined is, which party has the best title to the land in controversy. The plaintiff claims title under a sheriff's deed, as a purchaser at an execution sale made to satisfy a debt contracted by the grantor before the execution of the deed of the defendants. The defendant's deed was executed before the judgment was obtained on said debt, and is founded upon three considerations:

1. An agreement between the grantor and his wife, made prior to their marriage.

2. Love and affection for the defendants, the children of his wife.

3. Five dollars in money.

The second is no consideration at all, and the third is merely nominal, and was...