Willis v. Anderson

• Decision Date: 29 October 1924
• Docket Number: 172.
• Parties: WILLIS ET UX. v. ANDERSON ET AL.
• Court: North Carolina Supreme Court

124 S.E. 834

188 N.C. 479

WILLIS ET UX. v. ANDERSON ET AL.

No. 172.

Supreme Court of North Carolina

October 29, 1924

Appeal from Superior Court, Carteret County; Daniels, Judge.

Suit by M. H. Willis and wife against W. F. Anderson and others. Judgment as of nonsuit, and plaintiffs appeal. Affirmed.

All the defendants, except the Marine Bank, are nonresidents of this state. In July, 1921, the sheriff of Carteret county, by virtue of warrants of attachment directed to him, levied upon, seized, and took into his possession all the right title, and interest of the nonresident defendants in and to a certain lot of land situate in Morehead City, Carteret county N. C., described in certain paper writings from M. H. Willis and wife to W. F. Anderson, recorded in Book 32, at pages 184 and 416, office of register of deeds of Carteret county, on which is located the building occupied by the Marine Bank.

In their complaint plaintiffs allege:

That by means of false and fraudulent representations, set out in the complaint, made during the months of September and October 1920, of and concerning the value of the capital stock of the Spear Oil Company, the nonresident defendants induced the plaintiffs in consideration of shares of stock in said company of the par value of $12,500, or thereabout, to execute, and that plaintiffs did execute, a paper writing dated October 2, 1920, and recorded in Book 32 at page 184 office of register of deeds of Carteret county, purporting to convey to W. F. Anderson the property described therein for the recited consideration of $15,000; that thereafter, by means of the said representations, the said nonresident defendants induced the plaintiffs to sign, and that plaintiffs did sign, a paper writing, dated October 10, 1920, and recorded in Book 32 at page 416, office of the register of deeds of Carteret county, purporting to convey to W. F. Anderson the property described therein; that plaintiffs signed said paper writing, but did not affix their seals thereto.

That thereafter W. F. Anderson and his wife signed a paper writing, dated June 11, 1921, and recorded in Book 34, at page 342, office of register of deeds of Carteret county, purporting to convey in consideration of $7,000, paid in cash, the property described therein to defendant the Marine Bank. That said W. F. Anderson and his wife signed the said paper writing, but did not affix their seals thereto. That the representations set out in the complaint were made by the said nonresident defendants falsely and fraudulently with intent to mislead, deceive, and cheat, and that they did mislead, deceive, and cheat the plaintiffs, causing them to sign the two paper writings as alleged, and that thereby the plaintiffs have been damaged in the sum of $15,000.

That defendant the Marine Bank, at the time it took from W. F. Anderson and wife the paper writing signed by them, had full notice and knowledge of the false and fraudulent representations made to the plaintiff by the nonresident defendants, and that plaintiffs were induced thereby to execute and sign the deed and paper writing as set out in the complaint. That the consideration paid by said defendant to W. F. Anderson for the property described in said paper writing was notoriously inadequate, and that defendant is not an innocent purchaser for value of the property described in the paper writing executed by W. F. Anderson and wife to the defendant.

Plaintiffs demand judgment that they recover of the nonresident defendants the sum of $15,000 as damages; that same be adjudged a first lien on the lot of land described in the said paper writings; and that said lot of land be condemned to be sold to pay said debt and costs, and further that the two paper writings from plaintiffs to defendant W. F. Anderson and the paper writing from W. F. Anderson and wife to the Marine Bank be adjudged void, and the title to the said lot of land be adjudged in the plaintiffs unincumbered. The nonresident defendants did not file answer to the complaint or enter appearance either in person or by attorney in this action. Plaintiffs allege that the court acquired jurisdiction of said defendants by attachment of property owned by them in this state.

The Marine Bank in its answer denies that plaintiffs were induced by false and fraudulent representations, as alleged, to execute and sign the paper writing set out in the complaint. It denies any notice or knowledge on its part of such false and fraudulent representations, and alleges that it paid full value for the property conveyed to it by W. F. Anderson and wife. Said defendant further alleges that plaintiffs are estopped to set up any claim to the lot conveyed to it by W. F. Anderson and wife by their conduct, as set out in the answer. Defendant further denies that the nonresident defendants have any interest whatever in the property upon which the sheriff levied under the warrants of attachment issued to him.

Plaintiffs offered evidence which they contend support the allegations of the complaint. At the conclusion of all the evidence, upon motion of the defendant the Marine Bank, judgment as of nonsuit was rendered. To this judgment plaintiffs excepted and appealed to the Supreme Court. The only assignment of error is based upon this exception.

D. L. Ward and Ward & Ward, all of Newbern, and M. Leslie Davis, of Beaufort, for appellants.

Luther Hamilton, of Morehead City, and C. R. Wheatley and J. F. Duncan, both of Beaufort, for appellees.

CONNOR J.

The only assignment of error made by the plaintiffs on this appeal is based upon the exception to the judgment of nonsuit.

There was no personal service of summons on the nonresident defendants or on either of them. Neither of said defendants entered appearance or filed answer. Plaintiffs contend that the court acquired jurisdiction by attachment of property owned by said nonresident defendants in this state, and by publication of summons. Defendant the Marine Bank denies that the nonresident defendants have any right, title, or interest in or to the lot of land levied upon by the sheriff, under the warrants of attachment issued in this action.

Notwithstanding the publication of summons, as required by the statute (C. S. § 485), the court acquired no jurisdiction of the nonresident defendants, unless property in this state, subject to the process of the court, was brought under its control by attachment. Everitt v. Austin Bros., 169 N.C. 622, 86 S.E. 523; Walton v Walton, 178 N.C. 75, 100 S.E. 176; Bridger v. Mitchell, 187 N.C. 375, 121 S.E. 661.

On October 2, 1920, plaintiffs, by deed duly recorded in Carteret county, conveyed to defendant W. F. Anderson, his heirs and assigns, "a certain tract or parcel of land in Carteret county, state of North Carolina, adjoining the lands of ______ and others, bounded as follows, viz.: One two-story brick building known as the Marine Bank Building in square or block No. 9, part of the west half of lot No. 12, and part of the east half of lot No. 11, as known in the plan of Morehead City, the same being bounded on the north by Arendell street, and on the west by J. J. Baker's stores and on the east by R. T. Willis' store."

This deed was recorded on October 19, 1920. On June 20, 1921, plaintiffs signed a paper writing, without affixing their seals thereto, purporting to convey to W. F. Anderson, his heirs and assigns, "a certain tract or parcel of land in Carteret county, state of North Carolina, adjoining the lands and bounded as follows, viz.: Part of lots Nos. 11 and 12 in square No. 9 according with the plan of the town of Morehead City, N. C., beginning at a point in south line of Arendell street, 42 feet from the northeast corner of lot No. 11 in square No. 9 (eastwardly) and running eastwardly with the line of Arendell street 25 feet; thence southwardly parallel with Eighth street 90 feet; thence westwardly parallel with Arendell street 25 feet; and thence northwardly parallel with Eighth street 90 feet to the beginning, being the tract on which is located a brick building, the first floor of which is occupied by the Marine Bank. This deed is given in lieu of and for the purpose of correcting the description in deed recorded in Book 32, page 184, in the office of the register of deeds for Carteret county, North Carolina."

This paper is not effectual as a deed of conveyance as it purports to be, for the reason that the signers thereof did not affix their seals thereto. It was offered in evidence by plaintiffs. It bears date October 20, 1920, but was acknowledged by plaintiffs on June 20, 1921, and recorded on June 24, 1921. A comparison of the description in the deed, dated October 2, 1920, with the description contained in this paper, shows that the purpose of the plaintiffs was, as recited in the papers, to describe more accurately and with greater definiteness the lot of land sold and conveyed by plaintiffs to W. F. Anderson. The same lot of land is described in both the deed and this paper, and W. F. Anderson was, from and after the execution of the deed dated October 20, 1920, the owner in fee of the lot of land, in Morehead City on which is located the two-story brick building occupied by Marine Bank; said lot fronting on Arendell street 25 feet and running parallel with Eighth street 90 feet. There is no evidence that any of his codefendants, nonresidents of this state, owned, during this or at any other time, any interest in said lot of land.

In June, 1921, W. F. Anderson and his wife signed a paper writing which was duly recorded in Carteret county, on June 24, 1921, purporting to convey to the Marine Bank, in consideration of $7,000 paid to them in cash, the lot of land described in the deed from plaintiffs, dated October 2, 1920 and in the...