Randle v. Grady
| Decision Date | 19 November 1947 |
| Docket Number | 166 |
| Citation | 45 S.E.2d 35,228 N.C. 159 |
| Parties | RANDLE v. GRADY et ux. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Civil action for recovery of land and personal property, known as Crystal Springs Manor at Hendersonville N. C., and of rents and profits therefrom.
When this action was here on former appeal, 224 N.C. 651, 32 S.E.2d 20, from judgment as of nonsuit, the allegations of the complaint and admissions of defendant in answer filed were stated in full summary. Hence, rather than be unduly repetitious here, we now refer to that statement.
But defendants further answering aver, briefly stated: That at the times mentioned in the complaint plaintiff Eunice Randle was a minor and had no estate, and that the money paid as cash consideration for the deed from W. B. Hodges and wife to Helen G. Randle, Trustee for Eunice R. Randle, minor, was the property of Helen G. Randle, the mother of Eunice R. Randle who directed W. B. Hodges to make the deed to 'Helen G. Randle, Trustee for Eunice R. Randle, minor,' as a means by which her funds would be beyond the reach of persons who might make personal demands upon her, and that she took possession of the property and operated it as a hotel for three years, and out of the profits arising therefrom supported and maintained her minor child for said period and made payments covering all the interest and principal on said purchase money notes as set out in the complaint, and paid nothing on repairs, and allowed taxes to become delinquent, with the result that as Trustee and natural guardian of her child she sustained no loss on the transaction; and that she has instituted, promoted and engineered all the suits which Eunice R. Randle has brought against defendants, relating to this property, etc.
Defendants further plead as res judicata a judgment of nonsuit entered in 1939 at a term of General County Court of Buncombe County in an action therein pending entitled 'Harold K. Bennett, Guardian of Eunice R. Randle, minor, v. Raymond H. Boyer, doing business in the name and style of Boyer Realty Company, Don Grady, W. B. Hodges, O. B. Crowell and Helen G. Randle,' in which defendants here aver that the facts there alleged are substantially identical with the material facts in the present action. Complaint and answer filed in the said county court are attached as exhibits to defendants' answer. The complaint there alleges a cause of action for damages, for fraudulent conspiracy to extinguish the property rights of plaintiff acquired under the deed from W. B. Hodges and wife as aforesaid, expressly alleging that the action is not for the recovery of land or of personal property, or of any interest in either.
Defendants further aver, in their further answer, that if plaintiff had a cause of action against defendants, she had two remedies, inconsistent and in the alternative; and that by her election to sue in the action in the General County Court of Buncombe County, as above recited, for damages alleged to have been sustained by the alleged fraudulent actions set out in the complaint, she ought not to be permitted to maintain the present action to recover the property, and they plead such election of remedies in bar of plaintiff's right to maintain this action.
Upon the retrial in Superior Court, plaintiff offered evidence substantially the same as that introduced on the former trial, details of which are set out in statement of facts on former appeal. 224 N.C. 651, 32 S.E.2d 20.
In addition plaintiff offered evidence tending to show that the money paid as cash consideration at the time of the execution of the deed from W. B. Hodges and wife to Helen G. Randle, Trustee for Eunice R. Randle, minor, was the property of Eunice R. Randle; and that the money thereafter paid on the notes given for balance of the purchase price was also her property.
On the other hand, defendants offered evidence tending to show that all of the money so paid was the property of Helen G. Randle, and that in the transaction she, Helen G. Randle, was acting for herself. The contest thus arising was, in the main, the ground upon which the case was fought in the trial court.
Such of the evidence as is pertinent to consideration of exceptions presented will be recited in connection therewith. It is unnecessary to a decision on this appeal to set out other evidence offered by the respective parties.
The case was submitted to the jury on these issues,-which the jury answered as shown:
1. What amount of the plaintiff's monies, if any, were used in purchasing the property known as Crystal Springs Manor? Answer: $3,000.
2. What is the total reasonable rental value per year of said property from February 1939, to January 1947? Answer: $1,500.
3. What amount has been expended by the defendants for the necessary and reasonable upkeep, maintenance and repair of the real estate in question? Answer: $6,819.75.
4. Did the defendants, when there was reason to believe the title under which they were holding was good, make permanent and valuable improvements to the said property? Answer: Yes.
5. What amount was expended therefor? Answer: $1,500.
From judgment rendered thereon, both plaintiff and defendants appeal to Supreme Court and assign error.
Don C. Young, of Asheville, for plaintiff appellee.
Don C. Young and Claude L. Love, both of Asheville, for plaintiff appellant.
R. L. Whitmire and L. B. Prince, both of Hendersonville, for defendants appellants.
Defendants' Appeal:
While consideration of the several exceptions assigned by defendants as errors on their appeal fail to show reversible error, we treat them seriatim:
1. The first four exceptions relate to deposition of the cashier of a bank in Knoxville, Tennessee, which plaintiff offered in evidence. The sufficiency of the deposition, as stated in brief of defendants, is questioned (1) because of the way and manner in which it was returned to the Clerk of the Superior Court, and (2) because of the failure of the Clerk to pass upon and allow it. As to the first, it appears from the evidence set out in the case on appeal that after the deposition had been taken it was put in an envelope of the attorney for plaintiff, which had been prepared in his office in Asheville, North Carolina. The notary public sealed and stamped the envelope, and requested the attorney to drop it in the mail when he reached Asheville, and he did as requested. The statute, G.S. s 8-71, provides that 'depositions shall be subscribed and sealed up by the commissioners or notary public, and returned to the court, the clerk whereof * * * shall open and pass upon the same, * * *.' How it shall be returned is not prescribed. But in this case the method pursued is conceded to be free from cause for complaint. As to the second, the record fails to show any objection, exception or assignment of error. Moreover, while the record shows that the exception taken to the exhibits attached to the deposition is assigned as error, no argument in reference thereto is made in the brief filed here. Hence, it is taken as abandoned by him. Rule 28 of the Rules of Practice in the Supreme Court of North Carolina, 221 N.C. 544.
2. The fifth exception is to the overruling of defendants' objection to the introduction of a portion of the agreed case on appeal from the Buncombe County Court to the Superior Court of Buncombe County in the case of Harold K. Bennett, Guardian of Eunice R. Randle, Minor, v. Raymond H. Boyer, doing business in the name and style of Boyer Realty Company, Don Grady, W. B. Hodges, O. B. Crowell and Helen G. Randle, which included a bank statement of the State Trust Company of Hendersonville showing in said bank an account of Eunice Rosalyn Randle, minor, by Mrs. Helen G Randle, Trustee, 1 July, 1936, in the sum of $1173.32, and deposits of various sums in said account during July, August, September and October 1936--the largest amount of deposits therein at one time being $2007.76 on 28 September, 1936. As preliminary to and foundation for offering the above, plaintiff offered testimony tending to show that all the records of the bank pertaining to the Randle account were...
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