Bundy v. . Sutton

183 S.E. 725, 209 N.C. 571, 1936 N.C. LEXIS 295

• Court: Supreme Court of North Carolina
• Decided: February 26, 1936
• Status: Published

Opinion

Stacy, O. J.

The vital question presently presented is whether the evidence warrants the answers to the 3d, 5th, 7th, and 8th issues. A careful perusal of the record leaves us with the impression that it does.

In view of the avowed purpose of Joe and Guy Sutton to obtain possession of their father’s lands, the case presented an issue for the jury to determine whether the other defendants, with knowledge of the facts, were also “present, consenting unto the wrong.” While three of the claims, one in favor of the chemical corporation, another in favor of H. L. Hodges, and the third in favor of the trust company, were disallowed, in whole or in part, as proper charges against plaintiff’s estate while under guardianship, nevertheless under the collusive scheme of the two Suttons, these were to be paid in full or compromised. This circumstance proved to be the undoing of the whole plan, and furnished the nucleus of the evidence upon which the case was properly submitted to the jury.

The plea of estoppel, or that plaintiff’s remedy was by motion in the cause, rather than by independent action to vacate the order of confirmation, cannot avail in the face of the allegation and finding of fraud or collusion. Hatley v. Hatley, 202 N. C., 577, 163 S. E., 593; McCoy v. Justice, 196 N. C., 553, 146 S. E., 214; Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Craddock v. Brinkley, 177 N. C., 125, 98 S. E., 280.

The remaining exceptions are not of sufficient moment to call for elaboration. They have all been examined. None can be sustained. The verdict and judgment will be upheld.

No error.

Devin, J., took no part in the consideration or decision of this case.