Appeal
from superior court, Pitt county; H. G. CONNOR, Judge.
Action
to recover land, brought by the ancestor of plaintiffs, James
L. Mooring and others, and prosecuted by them after his
death, against defendants, W. J. Little and wife and Henry
Skinner. On the special findings of the referee in the case
the court found for defendants, and plaintiffs appealed.
At a
foreclosure sale, the wife of the insolvent mortgagor
without separate estate, bought the land at a fair price. By
agreement she gave in payment her notes for the balance due
on the mortgage, and certain judgments held by the mortgagee
against the husband, and secured them by a mortgage on the
land. She also gave a second mortgage to secure a sum paid on
the first mortgage. This last mortgagee purchased the land at
a sale under her first mortgage. Prior to the sale to the
wife, a fieri facias issued on judgments against the husband
subsequent to the ones the wife paid, and the land was sold.
Held, that the facts do not show such fraud as to render the
sale to the wife void, and the foreclosure sales passed title
to the land, and the fieri facias sale did not.
MERRIMON
J.
This
action was brought by the ancestor of the present plaintiffs,
in his life-time, to the spring term, 1879, of the superior
court of the county of Pitt, against the defendants, the
Littles,--husband and wife,--to recover the land described in
the complaint. At the return-term of the court, they filed
their answer, denying the allegations of the complaint,
except that they admitted themselves to be in possession of
the land. At the same term, the defendant Skinner, by leave
of the court, became a party defendant, and filed an answer
to the complaint, denying that the plaintiff was the owner of
the land, and alleging that he was the owner and in
possession thereof, and that the other defendants named were
his tenants. Afterwards, the defendant Skinner, at spring
term of 1880 of the court, filed an amended answer, alleging
that the deeds of conveyance under which the plaintiffs
claimed title were fraudulent and void; to which the
plaintiffs filed a reply. The defendants, the Littles,
adopted the amended answer of their co-defendant. The
pleadings raised issues of fact and law. Afterwards, at
spring term of 1882, the court entered this order: "It
is, by consent, ordered that
this cause be referred to Charles F. Warren, Esqr., who shall
try all questions and issues of law and fact, and his
findings of the facts shall have the effect of a special
verdict." Afterwards the referee, in pursuance of the
above order, made report, whereof the following is a copy:
"The
referee finds the following facts: (1) On the fourth day of
January, 1876, W. G. Little, being indebted to James L.
Mooring in the sum of $1,057.60, executed to the said
Mooring his bond for $1,057.60, payable January 1, 1877,
with 8 per cent. interest from date. To secure the payment
of the said bond, the said Little and his wife, Nicy,
executed a mortgage upon the land in controversy, with the
usual 30-days power of sale in case of default. The said
mortgage was duly recorded. The mortgage bond was assigned
before maturity, and for value, by the said Mooring, to I.
A. Sugg and William Whitehead. After the maturity of the
bond, the assignees, in the name of the mortgagee, Mooring,
and by direction, advertised the land for sale on the third
day of February, 1877. The land was sold on that day, and
Nicy Little was declared the purchaser at $1,155. (2) At
the date of the sale, and for some time prior thereto, the
defendant W. G. Little was largely indebted, and was
insolvent; that the homestead of W. G. Little has been
allotted to him in land not included in the mortgage. (3)
After the land was advertised, and before sale, the
defendant Little applied to Sugg for an extension of time,
which the said Sugg refused to grant unless the said Little
should pay him on the bond $500, and either pay him a bonus
for the indulgence, or secure six judgments docketed in
Pitt superior court, and amounting to $366, on February 20,
1877. The said judgments are specified in the testimony of
I. A. Sugg. They were all docketed subsequent to the
registration of the mortgage to James L. Mooring, and prior
to the judgment of Vaughn, Barnes & Co., and Lewis Webb,
under which the defendant Skinner claims title. All of said
judgments were prior liens to those under which Skinner
purchased. (4) It was thereupon suggested by Sugg that the
better course would be to sell the land and let Mrs. Little
buy, and secure the unpaid part of the mortgage and the
judgment held by him. Sugg stated to Little that by
pursuing this course it would rid the land of subsequent
judgments and place it beyond the reach of his creditors.
Little consented to the arrangement with this object in
view. James L. Mooring knew the agreement between Sugg and
W. G. Little before the sale of February 3, 1877. (5) Nicy
L. Little had no separate estate, and paid no money or
other thing of value for the conveyance of said land. (6)
That upon the twentieth day of February, 1879, a deed was
executed by James L. Mooring, read to said Nicy, and
delivered to her by the grantor; that at the same time and
place Nicy Little and her husband executed two
mortgages,--one to I. A. Sugg, to secure two notes of
$601.20 and $386.00, and payable December 1, 1877, and
December 1, 1878, with 8 per cent. interest from date; and
one to James L. Mooring for $400.00 payable January 1,
1878, with 8 per cent. interest from date,--both mortgages
being upon said land. (7) That upon the twentieth day of
February, 1877, W. G. Little, in pursuance of the agreement
previously had with Sugg, paid $100.00 upon the original
mortgage debt, and James L. Mooring paid for the said
Little $400.00, making the sum of $500.00 required by Sugg
as a payment on his debt. (8) That the $601 note, the
balance due upon the mortgage debt, after crediting the
$500.00 payment, and the $386.00 note was the amount of the
six judgments controlled by Sugg, with $20 added thereon as
a fee. The consideration of the $400 note to Mooring was
the money advanced by him for Little, and paid to Sugg. By
agreement between Mooring and Sugg, the mortgage to Sugg
was registered first. This agreement was made the day of
the execution of the mortgage. (9) At the sale of February
3, 1877, in furtherance of the understanding with W. G.
Little, Sugg bid off the land for the defendant Nicy L.
Little without her authority. Mrs. Little was not present
at the sale. (10) Upon the twentieth day of February, 1877,
the
six judgments controlled by Sugg were canceled upon the
docket, and also the mortgage of January 4, 1876, to James
L. Mooring. (11) On January 9, 1878, James L. Mooring paid
Sugg the amount then due upon the $601.20
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