Shober v. Wheeler

• Decision Date: 05 December 1893
• Citation: 18 S.E. 328,113 N.C. 370
• Parties: SHOBER et al. v. WHEELER et al.
• Court: North Carolina Supreme Court

18 S.E. 328

113 N.C. 370

SHOBER et al. v. WHEELER et al.

Supreme Court of North Carolina

December 5, 1893

Appeal from superior court, Forsyth county; Winston, Judge.

Action by F. E. Shober and others against W. H. Wheeler and others to set aside deeds of land as fraudulent. Judgment for plaintiffs. Defendants appeal. Affirmed.

J. S Grogan and Glenn & Manly, for appellants.

Watson & Buxton, for appellees.

BURWELL J.

We will consider the defendants' exceptions seriatim, as set out in the case on appeal:

1. It was a matter entirely within the discretion of his honor to determine whether or not the cause should be tried before some of the mortgagees were brought in. The plaintiffs were willing to try the case with the parties then in court. The defendants had excepted to the order, made at the instance of the plaintiffs, to bring in the mortgagees, thus insisting that they were not necessary parties. Plaintiffs seem, by their action, to have conceded that that exception was well taken, in part at least, and thereupon it was for his honor to say if a trial should then be had. If any good cause for a postponement had been shown, no doubt it would have been granted. It appears from the record that the mortgages spoken of were put upon the lands prior to the alleged fraudulent transfer by the mortgagor to his mother and father-in-law. Their validity is not in any way affected by the verdict and judgment.

2. The fact that the plaintiffs had examined the defendant W. H Wheeler under the provisions of section 581 of the Code did not compel the plaintiffs to use that testimony on the trial nor did it make that defendant, in any sense, the plaintiffs' witness. But, if so, we are unable to see how the defendants' cause could have been prejudiced by the questions and answers set out in this exception.

3. We think there was no good ground for this exception, but, if there were, it was completely obviated by the subsequent testimony of the defendant, fully establishing the very fact which the plaintiffs sought to prove by the evidence objected to here.

4. The tax returns made by defendants were properly submitted to the consideration of the jury. If they really owned the land here in dispute, it was their duty to return it for taxation. That they failed to so return it was some evidence that they did not consider themselves as the owners thereof.

5. This exception was not pressed before us.

6. The defendants excepted "to the ruling declining to permit defendants to open and conclude." The decision of his honor upon this point is not reviewable here. Rule 6.

7. His honor might have insisted that the plaintiffs' prayers for special instructions were handed to him after the time prescribed, and that he could not be required to consider them. That was his privilege, under the rule. The defendants could have no right to object to his exercising...