Merchants' Nat. Bank of Winston v. Pack

• Decision Date: 29 October 1919
• Docket Number: 361.
• Parties: MERCHANTS' NAT. BANK OF WINSTON v. PACK ET UX.
• Court: North Carolina Supreme Court

100 S.E. 615

178 N.C. 388

MERCHANTS' NAT. BANK OF WINSTON v. PACK ET UX.

No. 361.

Supreme Court of North Carolina

October 29, 1919

Appeal from Superior Court, Forsyth County; Bryson, Judge.

Action by the Merchants' National Bank, on behalf of itself and all other creditors, against L. C. Pack and wife. Judgment for plaintiff, and defendants appeal. No error.

It was competent to read in evidence the examination taken before the clerk and question defendant husband in regard to his answers, which appeared therein for the purpose of impeaching his testimony as to the ownership of the property alleged to have been conveyed by him to defendant wife in fraud of creditors.

The plaintiff alleged that the defendants are husband and wife and were so at the times hereinafter mentioned; that it was a creditor of the male defendant, L. C. Pack, when he conveyed to his wife by deed a certain tract of land therein described; that at the time the husband was then indebted to plaintiff and others, and made the deed to his wife without any consideration therefor, and without retaining property fully sufficient and available to pay his then existing creditors; that the deed was executed with the intent to hinder, delay, and defraud the plaintiff; that the wife had notice of the fraudulent intent of her husband, and actually participated in the fraudulent transaction; and, further that the husband acted as her agent in conducting and consummating the same.

The defendant denied all of these allegations, and alleged that the land was purchased with her own money and belonged to her, although title had been taken in her husband's name and that he was a trustee for her, and that the transaction was wholly free from any fraud or dishonesty on the part of the defendants. or any intention of either of the defendants to defraud the husband's creditors.

The court submitted issues to the jury, and they found that the deed was executed by the husband with the intent to defraud his creditors, and that his wife had notice of the fraudulent intent of her husband when she accepted the deed. Judgment was entered for the plaintiff upon the verdict, and the defendants appealed, having reserved several exceptions.

Bennett & Brown, of Winston-Salem, for appellants.

J. E Alexander, of Winston-Salem, for appellee.

WALKER, J. (after stating the facts as above).

The court permitted the plaintiff to introduce as evidence, a part of the complaint and the corresponding part of the answer. The objection was not to the competency of the pleadings themselves as evidence, but the only ground taken was that plaintiff was allowed to offer only a part of the answer, which was that L. C. Pack executed the deed to his wife, whereas the whole of that part of the answer is, as follows:

"That the allegations set out in paragraph 6 are denied, except (it is admitted that Mrs. D. L. Pack is the wife of L. C. Pack, and that on or about the 19th day of February, 1917, the defendant L. C. Pack executed a deed to his wife, D. L. Pack) for a valuable consideration, all other allegations are expressly denied."

We need not pass upon the correctness of this ruling of the court, as we are of the opinion, if there was error it was harmless, as both L. C. Pack and his wife were examined as witnesses, and each of them stated on the direct examination that the deed had been executed at the time alleged in the complaint, February 19, 1917, and there was really no conflict of evidence and no real controversy as to the existence of the fact. If there was error therefore it was harmless. The charge of the court also, as we think, prevented any harm to the defendants as it clearly stated the issues and the evidence bearing upon them which the jury should consider. It would not do to reverse upon so slight a ground, even if there was technical error. We have examined the entire case with care and scrutiny and cannot see that defendants have been prejudiced by the rulings.

The defendants restricted themselves to a single ground of objection and must abide here by the one they assigned below. Rollins v. Henry, 78 N.C. 342; Kidder v. McIlhenny, 81 N.C. 123; Ludwick v. Penny, 158 N.C. 104, 73 S.E. 228; Proffitt v. Insurance Co., 176 N.C. 680, 97 S.E. 635; State v. Evans, 177 N.C. 564, 98 S.E. 788. We cannot therefore consider the competency of the testimony, that is, the contents of the pleadings, though we may say upon a review of all the evidence and the charge of the court, that if there was any error in this particular, and proper objection has been made, this ruling would also have been harmless, or not of sufficient importance to justify another trial. 3 Graham & Waterman on Trials, 1235; Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358; Schas v. Eq. Assurance Society, 170 N.C. 420, 87 S.E. 222, Ann. Cas. 1918A, 679; State v. Smith, 164 N.C. 476, 79 S.E. 979.

It was competent to read the examination taken before the clerk, and question L. C. Pack in regard to his answers, which appear therein, for the purpose of impeaching his testimony as to the ownership of the property. If he had contradicted himself concerning this material fact, we see no reason why it could not be shown in this way. It is merely one way of showing contradictory statements of the witness. Johnson v. Railroad Co., 140 N.C. 581, 53 S.E. 362; Keerans v. Brown, 68 N.C. 43; Edwards v. Sullivan, 30 N.C. 302; State v. McLeod, 8 N. C. 344. And such evidence may also be used for the purpose of corroboration. Allred v. Kirkman, 160 N.C. 392, 76 S.E. 244; Bowman v. Blankenship, 165 N.C. 519, 81 S.E. 746.

The issues were sufficient to cover the case and to present all matters in controversy. Hatcher v. Dabbs, 133 N.C. 239, 45 S.E. 562; Potato Co. v. Jeanette, 174 N.C. at p. 240, 93 S.E. 795, and cases there cited. The judge gave those of the requested instructions to which the defendants were entitled, and the charge was more favorable to them in some respects than they had a right to expect.

The exceptions to the charge are without any merit, and, besides they are taken to long extracts therefrom,...