Taylor v. Taylor

• Decision Date: 15 May 1929
• Docket Number: 428.
• Citation: 148 S.E. 171,197 N.C. 197
• Parties: TAYLOR v. TAYLOR et al.
• Court: North Carolina Supreme Court

148 S.E. 171

197 N.C. 197

TAYLOR v. TAYLOR et al.

No. 428.

Supreme Court of North Carolina

May 15, 1929

Appeal from Superior Court, Moore County; W. F. Harding, Judge.

Action by Lula Taylor against F. L. Taylor and another. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed. Civil action to obtain alimony without divorce. Heard on motion.

The allegations of the complaint are to the effect: That Lula Taylor lived about a mile from the defendant F. L. Taylor near the town of Vass, in Moore county, N.C. That the defendant F. L. Taylor had seduced the plaintiff under promise of marriage, and afterwards they were married on the 14th day of July, 1928, in Randolph county, N.C. That on that date, or prior thereto, F. L. Taylor was the owner of certain lands in Moore and Cumberland counties, N. C., described in the complaint with particularity. That since the marriage defendant F. L. Taylor had repeatedly and almost continuously offered to the plaintiff such indignities to her person as to render the condition of plaintiff's life intolerable and burdensome, which is set forth in detail. That he had abandoned her without providing the necessary means of subsistence according to her condition in life. Then a conspiracy and fraud is charged between F. L. Taylor and his father, F. W. Taylor, with whom F. L. Taylor lived, to defraud her out of her marital rights; the conspiracy and fraud being set forth at some length. F. L. Taylor, by a deed purporting to be signed two days before his marriage with plaintiff, conveyed all his real estate to F. W. Taylor for the "consideration of $100, and other valuable considerations." That the deed was executed and delivered after the marriage, but if before was a part of the fraud and conspiracy. That F. L. Taylor, after he had been married two weeks, induced plaintiff to consent to go to California with him. F. W. Taylor, his father, a railroad employee, procured free passes for himself and wife, and F L. Taylor used these passes. Before leaving North Carolina, F. L. Taylor had an attorney prepare a separation agreement, relinquishing plaintiff's marital rights for $1,000. This she refused to sign. That in carrying out the fraud and conspiracy he did not go to California, but stopped at Reno, Nev. She was with child and pregnant for about four and a half months. She was penniless and he threatened to leave her in a strange city, far away from home. That he employed a lawyer at Reno and compelled plaintiff, by undue influence, coercion, and duress, to sign a paper writing which he signed, and had put in it the following: "Whereas, the said F. L. Taylor has wilfully heaped upon the said Lula Taylor such indignities as to render her condition intolerable and life burdensome." The deed of separation sets forth payment of $1,000 to be made in certain installments. The complaint alleges: "After the defendant F. L. Taylor paid to the plaintiff $75.00 aforesaid and after the plaintiff had signed said purported deed of separation the defendant, F. L. Taylor, nevertheless remained with the plaintiff for one night and two days, slept with the plaintiff during said night and compelled her to have sexual intercourse with him during said night." That the payment he made in Reno was taken by plaintiff for necessary subsistence.

The allegations of fraud, undue influence, conspiracy, coercion, and duress, in their most harrowing details, are set forth--unnecessary to further repeat.

The plaintiff's prayers for relief:

1. That the purported deed of separation set forth in the complaint be set aside and declared void.

2. That the purported deed from the defendant F. L. Taylor to the defendant F. W. Taylor, set forth in the complaint, be set aside and declared void.

3. That a reasonable sum be fixed and adjudged by the court for the support and maintenance of the plaintiff and for the expenses of counsel in this cause, and that the defendant F. L. Taylor be adjudged and decreed to pay such fixed sum from time to time to the plaintiff for her support and maintenance as the wife of the defendant F. L. Taylor, and to that end that the lands and property of the defendant F. L. Taylor described and referred to in the complaint be condemned and sold under the course and practice of the court and the proceeds paid to the plaintiff as her reasonable maintenance and support due to her from the defendant F. L. Taylor as his wife.

4. For all such other and further relief as the plaintiff may be entitled to in law or equity under the complaint.

The defendants answer and deny any fraud, undue influence, coercion, conspiracy, or duress. Defendants allege that part of the agreement has been paid and they stand ready, able, and willing to pay the balance. The defendants demurred ore tenus. the court sustained the demurrer ore tenus of the defendants that several causes of action were improperly united in the same complaint, to wit, against F. L. Taylor for alimony under section 1667 C. S., with action to set aside a deed of separation executed by plaintiff to defendant, acknowledged in Nevada and probated in North Carolina, and recorded here, with still another action by plaintiff to set aside a deed of conveyance by the defendant F. L. Taylor to the defendant F. W. Taylor; and the defendant F. L. Taylor further demurs to the motion of the plaintiff for alimony, and resists said motion upon the ground that the court is without jurisdiction to set aside and declare void the deed of separation set up both in the complaint and in the answer, and that so long as said deed of separation is not annulled the plaintiff is not entitled to alimony or counsel fees, and that the statute does not require the husband to pay alimony or counsel fees in an action to set aside a deed of separation alleged to have been executed under duress, or in an action to set aside a deed for property alleged to have been executed in fraud. The court sustained the demurrer, and the plaintiff excepted, assigned error, and appealed to the Supreme Court.

W. R. Clegg and U. L. Spence, both of Carthage, for appellant.

Hoyle & Hoyle, of Carthage, W. Duncan Matthews, of Southern Pines, and H. F. Seawell & Son, of Carthage, for appellees.

CLARKSON J.

The plaintiff's complaint seeks relief as follows: (1) For alimony and counsel fees under C. S. 1667. (2) To set aside a deed of separation between the plaintiff and defendant...