Patuxent Development Co. v. Bearden
| Citation | 41 S.E.2d 85,227 N.C. 124 |
| Decision Date | 31 January 1947 |
| Docket Number | 595 |
| Parties | PATUXENT DEVELOPMENT CO. v. BEARDEN. |
| Court | United States State Supreme Court of North Carolina |
The plaintiff's pleading purports to set up several related causes of action in 22 paragraphs, which we attempt to analyze and summarize rather than quote in full.
First Paragraphs 1-6, complaint alleges an indebtedness claimed to be due the plaintiff by the intestate Stutts, in the sum of $3,614.64, which, it is said, has been presented to the defendant administratrix in itemized form and refused payment.
Second In paragraphs 7-22, under the heading 'Second Cause of Action,' are grouped allegations of administrational and personal misconduct on the part of the defendant affecting her liability to the plaintiff in the following manner:
1. It is alleged that defendant's intestate had organized a company known as the 'Locklear Investment Corporation,' and procured the same to be incorporated with three shares of stock, two of them qualifying shares in the hands of the attorney and secretary of the concern respectively. These shares of stock, it is alleged, carried with them the ownership of a valuable house, furnishings, lots and curtilage in the Knollwood settlement in Moore County. The corporation, it is said, belonged to Stutts and entitled him, at his death, to be in possession of all the stock. The corporation is described in one paragraph as a 'going concern,' and in another as 'dormant.' That defendant 'in furtherance of her duties,' filed a petition with the Clerk of the Superior Court for permission to sell 'certain shares of stock' at private sale and report to the Court. It is alleged that after $500 had been paid for release of the stock, the defendant 'arranged' to have one share allotted to the widow of Stutts, who is defendant's sister, as part of her year's allowance at the nominal sum of $25; and 'arranged' to have the remaining shares transferred to her, the defendant, in her individual capacity, regardless of their true worth.
2. That defendant administratrix had petitioned the court to order a sale at auction of sundry accounts receivable, assets of the estate, reciting that she had been unable to collect them and deemed them insolvent; that they had been thus sold and had been purchased by Hilda L. Stutts, widow of the deceased, for the sum of $25, which sale was reported to the court, reciting that the bid was as much as could be obtained, and was confirmed by the court which so found.
In a separate paragraph, the complaint alleges that defendant 'knew or could with diligence have ascertained' that a large number of the accounts receivable, including $1385.02 against Locklear Investment Corporation, were solvent and could have been collected, in full for the benefit of creditors. And in still another paragraph, alleges that the allotment of one-third of the outstanding capital stock of the Locklear Corporation to the widow at the price of $50 in her year's allowance, the sale of the accounts receivable to a member of administratrix' family for $25, and the securing of a confirmation thereof by the court, was a fraud upon the creditors of the estate, and ought not to stand.
The plaintiff alleges it is entitled to have the order allotting the one share of stock to Hilda Stutts, the widow (who is not a party), vacated; and the orders and decrees under which the accounts receivable were sold by auction to the said Hilda Stutts and the sale confirmed, set aside.
There is no specific allegation in the complaint as to whether the defendant Bearden became the purchaser of the two shares of stock she is alleged to hold directly at the private sale ordered by the court or indirectly from some other person.
The prayer demands: That the defendant Bearden, individually, be declared to hold the stock acquired by her as trustee for the estate of Stutts; that she be required to account for rents received from the property at Knollwood; that the allotment of the stock to Hilda Stutts, and the sale of accounts receivable to her be vacated and set aside.
Within the time provided by the statute the defendant moved to strike out a certain paragraph of the first cause of action, alleging that plaintiff had offered to settle the controversy by arbitration; and all of the stated second cause of action as irrelevant, redundant and prejudicial. The motion was made before the Clerk, was resisted by the plaintiff for lack of jurisdiction in that court, and was dismissed on that ground. The defendant appealed to the Superior Court.
At the hearing before the Clerk, the plaintiff voluntarily consented to striking out the references to arbitration in the statement of the first cause of action.
Upon the hearing of the appeal, the defendant, still insisting on her right to have the remaining matter to which objection had been made stricken out, interposed a demurrer ore tenus to the part of the complaint denominated as a 'Second cause of Action' as not stating a cause of action.
The trial court overruled both the motion to strike and the demurrer. Defendant appealed.
J. Talbot Johnson, of Aberdeen, and Ehringhaus & Ehringhaus of Raleigh, for plaintiff, appellee.
U L. Spence, of Carthage, for defendant, appe...
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