K. H. Worthy Adm'r of John Morrison v. Caddell

• Decision Date: 31 January 1877
• Citation: 76 N.C. 82
• Court: North Carolina Supreme Court
• Parties: K. H. WORTHY Administrator of John Morrison v. I. H. CADDELL and others.

76 N.C. 82

K. H. WORTHY Administrator of John Morrison

v.I. H. CADDELL and others.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at Fall Term, 1876, of HARNETT Superior Court, before Furches, J.

This was a proceeding to sell land for assets commenced in the Probate Court of Moore County, and transferred to the Superior Court to try issues involving the title to the land. Upon affidavit of the defendant Caddell, the case was removed to the County of Harnett.

Worthy was appointed administrator of Morrison on the 13th of March, 1871, and after exhausting the personal estate in the payment of debts, filed a petition against the heirs-at-law of his intestate, (to which Caddell was made a party defendant) to sell the land in September following, in which it was alleged that the defendant Caddell claimed the land, under a pretended or fraudulent deed. This, the defendant denied; and alleged that he was the bona fide owner in fee of the 2,200 acre tract, and asked to be allowed to defend his title.

The plaintiff introduced one W. K. Nunnery, Dep. U. S. Marshal, who testified, that he sold the land in dispute, under execution against Morrison and others; that previous to the sale, he suggested to Morrison, that the other defendants in the execution had personal property; that Morrison said he did not wish to trouble them, but wanted his land sold and requested the witness to levy; that on the day of this conversation, “the defendant Caddell, at his own suggestion wrote the advertisements, stating that he wanted them written correctly, and that the land in dispute, 2,200 acres, was worth from three to four dollars per acre.”

The defendant testified in his own behalf in reply, and among other things, stated, “that he did write the advertisements, but wrote them at the instance of Nunnery, Deputy Marshal.”

There was other testimony relating to conversations between Morrison and others in the absence of defendant; and also evidence tending to show the intimate, confidential relations which existed between Morrison and the defendant.

The defendant became the purchaser at execution sale, in the sum of fifty dollars, and obtained a deed for the land, which the plaintiff contended passed no title. His Honor reserved his opinion touching the validity of the deed, and submitted the following issue to the jury; “Did the defendant purchase the lands in controversy in fraud of the creditors of John Morrison?” To which the jury responded: “Yes.”

Upon the question of law reserved, the Court was of opinion with the plaintiff, and adjudged, that a writ of procedendo be issued to the Probate Judge of Moore County &c,

Rule for a new trial. Rule discharged. Judgment for the plaintiff, from which the defendant appealed.

Messrs. John Manning and Neill McKay for the plaintiff .

Messrs. T. C. Fuller, W. A. Guthrie and J. D. McIver for the defendant .

PEARSON, C J.

This is a proceeding to subject the land mentioned in the pleadings to the payment of the debts of one Morrison, a deceased debtor, on the ground that Morrison procured his land to be sold under fi. fas against him with an intent to defraud his creditors. The defendant faintly traverses the allegation of fraud on the part of Morrison, and takes the ground that he is a bona fide purchaser for valuable consideration.

Two issues are presented by the pleadings; 1. Did Morrison procure his land to be sold under execution, with an intent to defraud his creditors? 2. Is the defendant a bona fide purchaser for valuable consideration?

As a preliminary objection, the counsel of defendant took the position, that the proceeding does not come within the operation of the statute under which it is instituted, and relied upon Rhem v. Tull, 13 Ire. 57. That case does not apply. There, the debtor never had the title, and his fraud was in causing the vendor to convey to his two sons. So 13th Eliz. could not be made to fit the case; for if the deed was void as to creditors, the title was still in the vendor. Here, the debtor had the title, and if the conveyance to the defendant be void as to creditors, it leaves the title in the debtor.

After a long trial, and the introduction of much evidence, a part of which is set out in the statement of the case, (“the other evidence touching the bona fides of the sales is not stated, as there was no exception to it,”) His Honor submitted the following issue to the jury: “Did the defendant purchase the land in controversy in fraud of the creditors of John Morrison?” which issue the jury find in favor of plaintiff.

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