Johnson v. Hardy

• Decision Date: 13 December 1939
• Docket Number: 682.
• Citation: 5 S.E.2d 853,216 N.C. 558
• Parties: JOHNSON et al. v. HARDY et al.
• Court: North Carolina Supreme Court

5 S.E.2d 853

216 N.C. 558

JOHNSON et al. v. HARDY et al.

No. 682.

Supreme Court of North Carolina

December 13, 1939

Gavin & Jackson, of Sanford, for plaintiffs, appellants.

H W. B. Whitley, of Raeford, and W. R. Clegg, of Carthage, for appellee J. C. Hardy.

H F. Seawell, Jr., of Carthage and W. Duncan Matthews, of Southern Pines, for appellees Lorenson and McCrimmon.

DEVIN Justice.

Plaintiffs are the heirs at law, next of kin and beneficiaries under the will of Catherine E. Johnson who died in May 1930. The defendant McCrimmon was appointed administrator of the estate of decedent in 1931. It was admitted that in 1930, prior to her death, Catherine E. Johnson conveyed to W. L. Jones a tract of land containing 79 acres, and that Jones and wife executed a deed of trust conveying the land to Arthur D Gore, Trustee, to secure the payment of five notes aggregating $1,500, payable to Catherine E. Johnson representing the purchase price of the land.

The material allegations of the complaint, briefly stated, are as follows: After the death of Catherine E. Johnson, W. L. Jones, being unable to pay the debt, and without having paid anything thereon, surrendered possession of the land to the plaintiffs who are now in possession thereof. In 1935, at the instance of defendant McCrimmon, an order of court was entered directing Arthur D. Gore, Trustee, to sell the land for the payment of the debt, and, pursuant thereto, sale was made, and plaintiff Sallie Johnson became the last and highest bidder for the land at $675, the date of the last sale being February 15, 1936. Report of sale was filed with the court. No order was made confirming the sale or ordering re-sale. It is alleged that, while plaintiff's bid was pending, defendants McCrimmon and Lorenson, with the aid of defendant Matthews who was attorney for both, colluding and conspiring together to deprive the plaintiffs of their property and rights, effected a sale by defendant McCrimmon to defendant Lorenson of the $1,500 notes and deed of trust for the wholly inadequate sum of $100; that the notes secured by the deed of trust were worth their face value and the makers were otherwise solvent; that as soon as the notes and deed of trust were thus wrongfully disposed of by defendant McCrimmon in breach of his trust and acquired by defendant Lorenson, these defendants procured the sale of the land under the deed of trust, Gore, the trustee, being imposed upon and the sale conducted by defendant Matthews; that the land was bid off at the last mentioned sale by defendant Lorenson at the purported price of $1,000, and his bid was assigned to defendant Hardy who was a party to the scheme and who took deed to the land with knowledge of the collusion and trickery alleged, Hardy paying Lorenson $400 therefor; that defendant Hardy is now seeking to eject the plaintiffs from the land under the deed so obtained, and has cut and removed $400 worth of timber from the land.

The defendant Arthur Gore admitted in his answer that he signed the deed to defendant Hardy "at the request and under the advice of W. D. Matthews, the attorney who handled said foreclosure sale; but that this defendant (Gore) neither individually nor as trustee ever undertook in any way or manner to conduct any of the proceedings effecting the conveyance of the land, nor handled any of the cash purported to have been obtained for either said land or any personalty...