North Carolina Nat. Bank v. Evans

• Decision Date: 04 January 1979
• Docket Number: No. 6,6
• Citation: 296 N.C. 374,250 S.E.2d 231
• Parties: NORTH CAROLINA NATIONAL BANK, v. Henry Thomas EVANS, et al.
• Court: North Carolina Supreme Court

Page 231

250 S.E.2d 231

296 N.C. 374

NORTH CAROLINA NATIONAL BANK, v. Henry Thomas EVANS, et al.

No. 6.

Supreme Court of North Carolina.

Jan. 4, 1979.

Everett & Cheatham by James T. Cheatham and Edward J. Harper, II, Greenville, for plaintiff-appellant.

Williamson, Shoffner, Herrin & Stokes by Robert L. Shoffner, Jr., Greenville, for defendant-appellee, Wooten.

HUSKINS, Justice:

This appeal presents two questions: Did the trial court err in granting partial summary judgment for defendant Wooten? Did the trial court err in striking the notice of Lis pendens ?

The guiding principles applicable to summary judgment under Rule 56, Rules of Civil Procedure, have been discussed numerous times by this Court. See, e. g., Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). An apt statement of these principles for the purposes of this appeal is found in Zimmerman v. Hoff & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974):

"In ruling on a motion for summary judgment, the Court does not resolve issues of fact but goes beyond the pleadings to determine whether there is a genuine issue of material fact. The moving party has the burden of establishing the absence of any triable issue, and the Court in considering the motion carefully scrutinizes the papers of the moving party and, on the whole, regards those of the opposing party with indulgence. This burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing. If a genuine issue of material fact does exist, the motion for summary judgment must be denied; the motion may be granted only where there is no such issue and the moving party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(e), Rule 56(f) (other citations omitted)."

The legal principles with respect to fraudulent conveyances are set out in Aman v. Walker, 165 N.C. 224, 81 S.E. 162 (1914), as follows:

"(1) If the conveyance is voluntary and the grantor retains property fully sufficient and available to pay his debts then existing and there is no actual intent to defraud, the conveyance is valid.

(2) If the conveyance is voluntary and the grantor did not retain property fully sufficient and available to pay his debts then existing, it is invalid as to creditors, but it cannot be impeached by subsequent creditors without proof of the existence of a debt at the time of its execution which is unpaid, and when this is established and the conveyance avoided, subsequent creditors are let in and the property is subjected to the payment of creditors generally.

(3) If the conveyance is voluntary and made with the actual intent upon the part of the grantor to defraud creditors, it is void, although this fraudulent intent is not participated in by the grantee, and although property sufficient and available to pay existing debts is retained.

(4) If the conveyance is upon a valuable consideration and made with the actual intent to defraud creditors upon the part of the grantor alone, not participated in by the grantee, and of which intent he had no notice, it is valid.

(5) If the conveyance is upon a valuable consideration, but made with the actual intent to defraud creditors on the part of the grantor, participated in by the grantee, or of which he has notice, it is void."

Here, plaintiff contends the disputed conveyances were voluntary, I. e., without adequate consideration, and that defendants Evans did not retain property fully sufficient and available to pay their existing debts. Alternatively, plaintiff contends the conveyances were voluntary and made by defendants Evans with the actual intent to defraud plaintiff, even though sufficient property was retained by defendants Evans to pay their existing debts.

Essential to both principles relied on by plaintiff is the element of voluntariness, I. e., inadequate consideration. In support of his motion for partial summary judgment defendant Wooten submitted affidavits tending to show that the disputed conveyances were supported by an adequate consideration. The trial court found that Wooten's affidavits established that the element of inadequate consideration asserted in plaintiff's pleadings was nonexistent. Perceiving no genuine dispute of fact on the consideration issue, the trial court concluded that there was adequate consideration for the conveyances as a matter of law and granted Wooten's motion for partial summary judgment.

Plaintiff did not respond to defendant's affidavits with any evidence tending to show that the claim of inadequate consideration presented a genuine issue for trial. Even so, defendant still has the burden of showing that there is no triable issue of fact and that he is entitled to judgment as a matter of law. "Hence plaintiff may yet succeed in defending against the motion for summary judgment if the evidence produced by the movant and considered by the court is insufficient to satisfy the burden." Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). Thus, the precise question before us is whether defendant Wooten met his burden of establishing: (1) that the claim of inadequate consideration presented no triable issues of fact, and (2) that he was entitled to a judgment as a matter of law.

In order to decide the precise question posed we must first determine what constitutes a valuable consideration in the law of fraudulent conveyances. Under the case law interpreting our statutes on fraudulent conveyances G.S. 39-15 Et seq. "a determination that a conveyance was not made for valuable consideration means that the conveyance was 'voluntary.' " Comment, 50 N.C.L.Rev. 873, 878 (1972). A conveyance is deemed to be voluntary "when the purchaser does not pay a Reasonably fair price such as would indicate unfair dealing and be suggestive of fraud." Gas Co. v. Leggett, 273 N.C. 547, 161 S.E.2d 23 (1968) (emphasis added).

A valuable consideration in the law of fraudulent conveyances is not the same as a valuable consideration in the law of contracts. See Knight v. Bridge Co., 172 N.C. 393, 90 S.E. 412 (1916). This crucial distinction was explained by Chief Justice Ruffin in Fullenwider v. Roberts, 20 N.C. 420 (1839). Mere inadequacy of price is not sufficient to set aside a contract as between two parties for the reason that "if one will, without imposition, distress or undue advantage, make a bad bargain with his eyes open, He must stand to it. His agreement is sufficient, because his interests alone are affected by it." Id. However, different policy considerations come into play when the transaction involves the interests of a creditor who is not a party to the transaction. As against such creditors "the price must be sufficient in itself to sustain the deed, without the aid of their acceptance, for no such acceptance exists." Id. Since the creditor has no control over the amount of consideration which his debtor will accept in relinquishing assets, the law requires that the debtor receive "a Fair and Reasonable price, according to the common mode of dealing between buyers and sellers." Id. This does not mean that the debtor "should (be) paid every dollar the land was worth, but he should (be) paid a reasonably fair price, such as would indicate fair dealing, and not be suggestive of fraud." Austin v. Staten, 126 N.C. 783, 36 S.E. 338 (1900). Such a requirement prevents a debtor from placing his assets beyond the reach of his creditors by transfers to friendly parties for nominal considerations.

Thus for defendant Wooten to meet his burden of establishing that there is no triable issue of fact on the question of adequate consideration and that the conveyances to him were not fraudulent as a matter of law, he must demonstrate that he paid a "fair and reasonable price" to defendants Evans for the several tracts of land they conveyed to him. Due consideration of the affidavits offered by Wooten in support of his motion for partial summary judgment leads us to conclude that...