Hare v. Jernigan

• Decision Date: 31 January 1877
• Citation: 76 N.C. 471
• Parties: JACKSON B. HARE, Adm'r. v. SALLIE D. JERNIGAN and others
• Court: North Carolina Supreme Court

76 N.C. 471

JACKSON B. HARE, Adm'r.

v.SALLIE D. JERNIGAN and others

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at Spring Term, 1876, of HERTFORD Superior Court before Moore, J.

In February, 1866, the plaintiff's intestate, John H. Jernigan, bought of one Jacob Sharpe a water mill for the sum of $6,350 and obtained a deed in fee simple. He took possession of the same and expended in repairs, &c., about $1200 of his own funds.

In June, 1866, Sharpe, at the request of said intestate, executed in his presence a deed for the same mill to the defendant Sallie D. Jernigan, the wife of intestate J.H.Jernigan, who delivered the deed to his wife in the absence of Sharpe.

Sharpe stated that he thought the first deed was surrendered to him and destroyed.

The deed to Mrs. Jernigan was registered after the death of her husband which occurred in 1870; but the said deed of February, 1866, was never proved or registered. The only money paid to Sharpe in consideration of said purchase was by the intestate at the date of first deed. In February, 1868, Jernigan and wife conveyed the said property to the other defendant, Seth Nowell, and took in payment several notes made payable to defendant Sallie D. Jernigan, which she has since held and claimed as her own property.

These notes are the subject of this action and the plaintiff as administrator of Jernigan demands judgment for the sum due thereon to the end that it may be applied to the payment of the outstanding debts of his intestate.

It was admitted that the intestate was solvent until 1868, when he became insolvent and continued so until his death in 1870.

The facts found by the jury were:

1. “That in June, 1866, the date of the deed to Mrs. Jernigan, the intestate owned property in his own right of the value of $6800, exclusive of said mill; that he expended on the mill $1200, and was indebted $2300.”

2. “That the surrender of the deed to himself and the execution of the deed to the defendant were not done or procured to be done by the plaintiff's intestate with the intent to defraud creditors.”

Upon this finding, His Honor declared that in June, 1866, the plaintiff's intestate retained property fully sufficient and available for the satisfaction of all his then creditors, and held that the title to said property under the deed of February, 1866, remained in John H. Jernigan, (notwithstanding the alleged surrender,) until divested by the sale to Nowell, in February, 1868.

The said intestate being insolvent at the time of said sale, His Honor was also of opinion that the proceeds of the same should be chargeable with the payment of his debts and gave judgment in favor of the plaintiff. Appeal by defendants.

Mr. Walter Clark, for plaintiff .

Messrs. Moore & Gatling and Gilliam & Pruden, for defendants .

BYNUM, J.

Suppose the deed from Sharpe to John H. Jernigan had been duly registered so as to pass the title to him, in February, 1866, and that in the following June, Jernigan had conveyed to the use of his wife by deed duly registered. The title of the wife would have been good against all the world, for upon a proper issue submitted, the jury have found that at the time of the execution of the the second deed, the husband owned property subject to execution twice the amount of his debts, and upon that finding the Court adjudged, as matter of law, that Jernigan “retained property fully sufficient to satisfy all his then creditors;” and from that judgment the plaintiff does not appeal. The jury also found by their verdict, that the surrender of the first and execution of the second deed, were “without the intent to hinder, delay or defraud creditors.” Upon such a view of the...