Winchester v. Gaddy

• Decision Date: 31 January 1875
• Citation: 72 N.C. 115
• Court: North Carolina Supreme Court
• Parties: THOS. D. WINCHESTER v. A. S. GADDY.

72 N.C. 115

THOS. D. WINCHESTER

v.A. S. GADDY.

Supreme Court of North Carolina.

January Term, 1875.

A purchaser of property exempt from execution under the Homestead Act, cannot be held liable as Executor de son tort; and an assignment of such property by a debtor without valuable consideration is not therefore fraudulent.

CIVIL ACTION against the defendant as executor de son tort, tried before Buxton, J., at the Spring Term 1874, of UNION Superior Court.

The plaintiff commenced his suit in a Justices' Court upon a note for $131.85, dated 5th January, 1859, and payable with interest, which note was signed by Elizabeth Gaddy now deceased. He recovered a judgment before the Justice and a jury, whereupon the defendant appealed to the Superior Court.

On the trial in the court below, it was conceded that the plaintiff was the owner of this note and that it was justly due for value received, from Elizabeth Gaddy; that she died intestate?? in Union county, where she had lived in November, 1871, and that no administration had ever been taken out on the estate she left.

The object of the present action is to change the defendant as executor de son tort, to the extent of the plaintiff's debt, upon the ground of his having appropriated property of the deceased to a value greater than the debt.

The defendant claimed that the deceased, who was his mother, was largely indebted to him, and that the year before she died she transferred to him all her property in settlement of the debt.

It was in evidence that the defendant was a young man, unmarried and lived with his mother and a single sister. On returning from the army in 1865, he took charge of the farm, managed everything, worked as a hand and supported the family, getting his own support, but no wages, his mother telling him to take his pay out of the crop, which however he did not do. He had some little means of his own, out of which he paid some of his mother's debts and loaned her some money. She was a widow and had a life estate in the plantation. In 1870, apprehending that she was about to be pressed upon some old ante war debts, among them that due the plaintiff, she transferred all her personal property to the defendant, consisting of a mule, oxen and cart, cows, sheep, hogs, furniture, corn, wheat, cotton, &c., under the following arrangement, as she informed a witness. That she had sold all her property to Alfred, the defendant; that the property she had, she did not consider would more than pay him for taking care of her and for the money she had borrowed of him and for that he had paid for her. That she could not live long, and she desired that her son should keep the property at the same place for her support while she lived; that she expected to be pushed for her old debts, among others by the plaintiff; that she could not pay her old debts and pay Alfred and live, and that she felt it to be her duty to pay her son first, as he had been taking care of her; that she would try to pay her old debts afterwards if she could.

The following issues were framed under the direction of the court and submitted to the jury, who found in response thereto: 1. That the transfer of her property by Elizabeth Gaddy to her son, the defendant, was fraudulent, and that the property was worth $440. 2. That Elizabeth Gaddy was indebted to her son, at the time of her death in the sum of $1028. 3. And that he had paid for her debts to the amount of $13.21.

Upon this finding of the jury, the plaintiff moved for judgment for the amount of his debt,...