Kelly v. Fleming

• Decision Date: 24 October 1893
• Citation: 113 N.C. 133,18 S.E. 81
• Court: North Carolina Supreme Court
• Parties: KELLY. v. FLEMING et al.

18 S.E. 81

113 N.C. 133

KELLY.

v.FLEMING et al.

Supreme Court of North Carolina.

Oct. 24, 1893.

Husband and Wipe—Conveyance op Household Furniture by Husband — Bill op Sale — Description—Conveyance by Parent to Child— Presumption—Instructions.

1. Act 1891, c. 91, § 1, providing that, whenever household or kitchen furniture is conveyed by chattel mortgage or otherwise as allowed by law in North Carolina, the privy examination of married women shall be as prescribed in conveyances of land, does not apply to an absolute sale by the husband of such property.

2. A bill of sale describing the property conveyed as all the household and kitchen furniture, and all other property of every description, belonging to the grantor at a certain house, sufficiently describes the property conveyed.

3. A conveyance from a parent to a child 21 years old is not, in law, presumptively fraudulent, unless it be shown to be a voluntary conveyance, or one upon insutfficient consideration, while the parent is in embarrassed circumstances.

4. Instructions, though correct as propositions of law, are properly refused, in the absence of evidence on which such instructions could he based.

Appeal from superior court, Vance county; George A. Shuford, Judge.

Action in attachment by J. A. Kelly against E. L. Fleming, Sr. E. L. Fleming, Jr., interpleaded, setting up the title to the property attached by plaintiff as the property of E. L. Fleming, Sr. There was judgment for E. L. Fleming, Jr., and plaintiff appeals. Affirmed.

In support of his claim to the property attached, E. L. Fleming, Jr., offered in evi dence a paper writing purporting to be a bill of sale, as follows: "In consideration of $500 in cash to me paid by E. L. Fleming, Jr., I hereby bargain, sell, convey, and deliver to E. L. Fleming, Jr., all the household and kitchen furniture, and all other property of every description, belonging to me, and at the house and lot in Henderson, N. C, owned by W. D. Horner, and occupied by my family. Witness my hand and seal this 13th July, 1892. E. L. Fleming. [Seal.]"

A. C. Zollicoffer and Pittman & Shaw, for appellant.

T. T. Hicks, for appellees.

MacRAE, J. His honor instructed the jury to respond to the first and second issues, "No;" and to this instruction, and the finding of the jury in response thereto, there was no exception. This eliminates from the case any question which might have arisen if a part of the property conveyed by the husband had been found to belong to the wife. The first exception brings before us for construction the act of 1891, c. 91, entitled "An act regarding chattel mortgages: " "Section 1. That whenever household or kitchen furniture is conveyed by chattel mortgage or otherwise as allowed by law in this state, the privy examination of married women shall be taken as is now prescribed by law in conveyance of real estate; provided that all such conveyances of household and kitchen furniture, except as herein provided, shall be ineffectual to convey a title to the same." The question presented is whether, upon a true construction of the statute above cited, it is necessary for the wife to join the husband in a conveyance and sale of his household and kitchen furniture, and be privily examined touching her free execution of said conveyance, in order to make the same effectual in law. The act is not drawn with that precision and clearness which will en-able us to reach without difficulty a conception of the will of the legislature. The words "household and kitchen furniture" may comprise, not only that species of property which is in actual use, but also that which is on sale in shops. Yet no one will contend that this statute should be construed so literally as to embrace articles of this kind of the latter class. The word "convey, " in its broadest significance, might embrace any transmission of possession; but we are re strained to its legal meaning which, ordinarily speaking, is the transfer of property from one person to another by means of a written instrument and other formalities. Rap. & L. Law Dict. "Convey, Conveyance." According to Webster, a conveyance is "an instrument in writing by which property, or the title to property, is conveyed or transmitted from one person to another." The meaning of this word being well understood at common law, it must be understood in the same sense when used in a statute. Smithdeal v. Wilkerson, 100 N. C. 52, 6 S. E. Rep. 71. The statute refers to the manner of conveyance, i. e. by chattel mortgage, and proceeds, "or otherwise as allowed by law." It is a very familiar principle in the construction of statutes that, when there are general words following particular and specific words, the former must be confined to things of...