Worthy v. Brady

• Decision Date: 31 October 1884
• Citation: 91 N.C. 265
• Court: North Carolina Supreme Court
• Parties: J. A. WORTHY v. JAMES BRADY and others.

91 N.C. 265

J. A. WORTHY

v.JAMES BRADY and others.

Supreme Court of North Carolina.

October Term, 1884.

EJECTMENT, tried at December Special Term,

1883, of MOORE Superior Court, before MacRae, J.

The plaintiff appealed from the ruling and judgment of the court below.

Messrs. McIver & Black and J. W. Hinsdale, for plaintiff .

Messrs. W. A. Guthrie and W. E. Murchison, for defendants .

SMITH, C. J.

The defendants' motion to dismiss the plaintiff's appeal because his undertaking was not filed within ten days after rendition of judgment, is refused. The undertaking recites the judgment as having been recovered on the 31st day of December, 1883, which was the first day of the term, following the fiction that refers all the business of a term to its beginning, while a judgment does not become complete and final until its close, as is held in Clifton v. Wynne, 81 N. C., 160, in construing an act of the general assembly.

The trial in fact occurred, as is shown in affidavits of appellant's counsel, during the second week, and the date of the justification, January 15th, 1884, is within ten days thereafter.

The action was brought against the defendant James Brady for the recovery of the tract of land describod in the complaint to which the defendant, Charles Brady, became a party upon his application under a claim of ownership, and that the defendant, James Brady, was his tenant only.

The plaintiff derives his title to the land from a sale under execution against the said James Brady and the sheriff's deed therefor made on January 10th, 1881, to himself, the debts reduced to judgments having been contracted previous to the year 1868. The sale was made on June 7, 1880, of the interest and estate of the judgment debtor in the premises.

The defendant, Charles, claims title under a deed from the said James, his father, (who enters a disclaimer for himself) bearing date and executed on March 10th, 1868, prior to the judgments, conveying the land in fee.

The recital of the consideration of the conveyance is in these words: “That the said James Brady of the first part, hath two sons, Robert W. Brady and Turner Street Brady, who are partially deaf and dumb. Now if the said Charles Brady shall protect and support the said Robert W. and Turner Street, his brother, as he agrees to do in the same manner as they are now cared for during their natural life, for that consideration of the said Robert W. and Turner Street Brady being taken care of and supported, and the further consideration of one dollar, &c., I hereby convey,” &c.

In the habendum clause limiting an estate in fee are superadded the words “on his complying with the conditions of these presents.”

This deed is impeached, as a voluntary conveyance or gift, because the grantor did not at the time of making it retain property “ fully sufficient and available for the satisfaction of his then creditors,” as required by the statute, Rev. Code, ch. 50, § 3. Much testimony was accordingly offered of the extent of the indebtedness and of the character and the value of the property then remaining to the debtor, with a view of showing the insufficiency of the latter to meet the liabilities of the debtor, under the construction given the statute in Black v. Sanders, 1 Jones, 67; Pullen v. Hutchins, 67 N. C., 428, and Warren v. Makely, 85 N. C., 12.

These cases and the statute have reference to voluntary gifts or settlements of property by one indebted at the time, which, in O'Daniel v. Crawford, 4 Dev., 197, were declared fraudulent and void against any creditor whose debt was subsisting at the time, however ample were the resources of the debtor, if by reason of subsequent waste or destruction of property there was left no means of payment. The statute corrects this ruling and declares voluntary conveyances not made with a fraudulent intent, valid and effectual, if the debtor then had ample property to provide for all his creditors, whatever casualties might befall it thereafter.

The deed set up by the defendants is not in form or fact, voluntary or a gift within the meaning and purpose of the enabling act.

It is founded upon a valuable consideration in the undertaking assumed by the grantee to protect and support during their respective lives his two partially deaf and dumb brothers, in the manner in which they were then provided for. This contract as truly constitutes a valuable consideration passing between the parties, as would be the payment of money or the giving a note or bond for its payment. The legal operation of the deed does not then depend upon the value of the debtor's reserved estate, but upon the intent with which the conveyance is made, and perhaps presumptive evidence of the vitiating intent is furnished upon the face of the instrument to be removed by the grantee, and, if not, found as a fact by the jury.

The statute which declares that a mere indebtedness existing at the time of making a gift shall not render the gift void, “when property fully sufficient...