Hawkins v. Hughes
| Decision Date | 31 October 1882 |
| Citation | 87 N.C. 115 |
| Court | North Carolina Supreme Court |
| Parties | HAWKINS & HAWKINS v. S. A. HUGHES and others. |
CIVIL ACTION tried at July Special Term, 1882, of VANCE Superior Court, before Graves, J.
The plaintiffs, having obtained a judgment against the male defendant for $752.56, in Warren superior court, and caused it to be docketed in Granville superior court, bring this action, in which they allege that the said defendant being indebted to them and insolvent, contracted to buy the land described in the complaint of one Kittle, and afterwards paid for the same, and on the 18th of March, 1877, procured a deed from Kittle to be made to his wife, the feme defendant, in order to conceal his interest in the land and withdraw it from the satisfaction of his debts and thereby defraud his creditors; and thereupon they ask that the feme defendant may be declared a trustee as to the said land for the benefit of her husband's creditors, and that it may be sold after setting apart a homestead to the defendants, and the proceeds applied to the plaintiffs' judgment.
The defendants admit the insolvency of the husband, the purchase of the land and the execution of the deed to the wife, but deny the fraud alleged, and say that the land was bought by the husband as agent of the wife, and was paid for, not with his money, but with money belonging to her separate estate.
The jury found that the land was purchased by the husband and paid for with his own money and not that of his wife, and the plaintiffs moved for judgment, but the defendants moved in arrest of judgment upon the ground that the plaintiffs should have sought relief, not by an independent action, but by supplemental proceedings in the original cause. Defendants' motion was overruled and they excepted. The court then gave judgment for plaintiffs, and the defendants appealed.
Mr. J. B. Batchelor, for plaintiffs .
Messrs. Merrimon & Fuller, for defendants .
The court is inclined to the opinion, inasmuch as the defendant debtor had no estate, and never had, in the land which is the subject of controversy, that, perhaps, a distinction might be drawn between the present case and Hinsdale v. Sinclair, 83 N. C., 338, and Caskill v. Lancashire, Ib., 393, in support of the plaintiffs' right to have their independent action. But, though very ably argued at the bar, we have not felt called upon to decide that point, nor how far the court might have restricted them, in case objection had been made in apt time, to such relief as might have been had in their former action. For, conceding the point to be against the plaintiffs, and that they not only could, but should have sought relief by proceedings supplementary to execution, we are still of the opinion that it was too late for the defendants to make their objection after verdict.
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...supra; Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119; Curtis v. Piedmont Lumber & Mining Co., 109 N.C. 401, 13 S.E. 944; Hawkins v. Hughes, 87 N.C. 115; Smith v. Moore, supra; Harris v. Johnson, supra; Rogers v. Holt, 62 N.C. 108. The objection that a prior action is pending between the s......
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... ... Field, 342 ... Mo. 778, 796, 117 S.W.2d 308, 318; United Cemeteries Co. v ... Strother, 342 Mo. 1155, 1161, 119 S.W.2d 762, 765; Hawkins ... Mo. 778, 796, 117 S.W.2d 308, 318; United Cemeteries Co. v ... Strother, 342 Mo. 1155, 1161, 119 S.W.2d 762, 765; Hawkins v ... Hughes ... ...
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