Winchester v. Winchester

• Decision Date: 19 November 1919
• Docket Number: 442.
• Citation: 101 S.E. 25,178 N.C. 483
• Parties: WINCHESTER v. WINCHESTER ET AL.
• Court: North Carolina Supreme Court

101 S.E. 25

178 N.C. 483

WINCHESTER v. WINCHESTER ET AL.

No. 442.

Supreme Court of North Carolina

November 19, 1919

Appeal from Superior Court, Mecklenburg County; Adams, Judge.

Action by Henry Winchester, administrator of J. R. Winchester against Mrs. Mary W. Winchester and others. From an adverse judgment, plaintiff appeals. No error.

There was no error in refusing to submit issues, where there was no evidence to justify doing so.

On August 1, 1913, Dr. F. M. Winchester and his wife, Mary W Winchester, executed to J. H. Little, trustee, a deed of trust on the property in question securing the payment of two notes on bonds, one in the sum of $1,200 due Margaret A Hilton, and one in the sum of $1,000 due P. S. McLaughlin. On May 6, 1918, said trustee foreclosed the said deed of trust and the defendant Mary W. Winchester purchased said property at said sale for $3,000. The plaintiff's intestate held a second deed of trust on said property and brings this action to set aside the foreclosure sale and to have the deed to said Mary W. Winchester declared void or for judgment that she account to plaintiff and other creditors for the alleged difference between the purchase price of the property and the fair market value thereof, alleging that she procured the sale by the trustee to hinder and delay and defeat the claim of the plaintiff and other creditors of Dr. Winchester, and that she purchased the property for a grossly inadequate consideration. The court found in response to the issues that Mary W. Winchester qualified as executrix on her husband's estate which is indebted to the estate of the plaintiff's intestate in the sum of $480, and that the market value of the lot at the time of the sale was $3,000. Judgment in favor of defendant, and appeal by plaintiff.

Brenizer & Taylor, of Charlotte, for appellant.

Stewart & McRae, of Charlotte, for appellees.

CLARK C.J.

The jury found by consent that Mary W. Winchester was executrix of the estate of Dr. F. M. Winchester, and that the estate owed the plaintiff $480, and upon the evidence that the lot bought by Mary W. Winchester brought its full value. The plaintiff excepted because the court did not submit to the jury four other issues whether the sale was made at the request of the defendant executrix, or at the request of the owners and holders of the bonds secured by the mortgage whether the executrix procured the sale to be made for the...