Perry v. Hardison
| Decision Date | 20 February 1888 |
| Citation | 5 S.E. 230,99 N.C. 21 |
| Parties | PERRY et al. v. HARDISON et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Beaufort county; AVERY, Judge.
Action by Perry and others against Louis Hardison and Asa Ellis to set aside a mortgage. Judgment for plaintiffs, and defendants appeal.
A justice's docket which shows an accepted service of summons, a trial, and judgment for a certain sum, is sufficient to sustain a transcript docketed in the superior court, and execution thereon.
Geo. H Brown, for plaintiffs.
W. B Rodman, for defendants.
The tract of land, the title to which is drawn in question in the action, as described in the complaint, belonged to the defendant, Louis Hardison, under whom the plaintiffs claim by virtue of a sale under execution to Charles F. Warren on July 1, 1878, and a conveyance from him to the plaintiffs. The defendant Asa Ellis derives his title under mortgage deed from said Hardison to secure the sum of $200, made after the institution of the suits, but before the docketing of the judgments rendered thereon, pursuant to the executions issued on which the sheriff made the sale. The sole issues raised in the pleadings are as to the validity of this sale, and, if upheld, as to the bona fides and legal efficacy of the mortgage deed. At spring term, 1882, of Beaufort superior court, a reference by consent to John H. Small was made directing him to inquire and report whether the mortgage deed is fraudulent and void, and what sum, if any, is due thereon, and such other matters, whether of fact or of law, as arise upon the case, subject to exceptions to be passed on by the court. The referee made his report, and it, upon exceptions, was recommitted several times in succession, until his final report was made at February term, 1887, with numerous exhibits; when the court, upon the hearing, approved of and adopted the findings of fact, overruled the defendants' exceptions, confirmed the report, and rendered judgment for the plaintiffs, from which the defendants appeal.
The record in this case, as in others of which we have had occasion to speak, fails to assign error in the rulings of the court, and compels us to search through the voluminous pages of the report and the testimony taken, as well as among the exceptions to the action of the referee, to ascertain what are his conclusions of law, which are reviewable and open to correction here. The practice cannot be allowed, and, if our admonitions are to be disregarded, we shall be constrained to refuse to take cognizance of the cause, and dismiss the appeal. The errors alleged to have been committed by the court should be distinctly and plainly pointed out, as those intended to be presented and heard on appeal.
The objections made on the rulings of the referee as to questions of the admissibility of evidence, to-wit, as to the usage of farmers in the employment of laborers, and paying them wages; the manner in which another employer of defendant Ellis paid his wages; the novelty of providing and securing them by a mortgage deed in advance of their being earned,--were properly overruled, since, while their pertinency to the issue of fraud is not very apparent, we do not see how the evidence tended to mislead the referee.
The introduction of the tax-books as tending to show the financial resources of the defendants, in an inquiry as to their means of self-support, is, in our opinion, not obnoxious to objection, and its force and effect were for the referee, acting in place of a jury, to pass on and determine.
The defendants insist that no judgments were rendered by the justice against the defendant Hardison upon the claims sued on, and that the certified transcripts of such as were docketed, and under executions on which the land was sold were without an original, and were in consequence nullities; the sale passing no title to the purchaser, the attorney and agent of the creditors whose claims he was collecting. Whatever may have been the legal consequences if the facts...
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