Cowan v. . Phillips

28 S.E. 961, 122 N.C. 70, 1898 N.C. LEXIS 195

• Court: Supreme Court of North Carolina
• Decided: February 22, 1898
• Status: Published

Opinion

Furches, J.:

This case has been here before and is reported in 119 N. C., 26. A new trial was awarded in that appeal, the case has been retried, and it is here again.

The record of this appeal contains 40 exceptions, many of them being the same in substance and effect, expressed in different forms and in different language. They have all been considered by the Court, but it is not deemed necessary or profitable to discuss them separately in this opinion. In our opinion they do not entitle the defendants to a new trial. None of the evidence introduced by the defendants, and none of the evidence offered and rejected by the Court (except that which was clearly incompetent, and so decided to be on former appeal) tended to disprove the facts that the Court had held in the former appeal made the conveyance fraudulent; and the burden of proof was on the defendant.

But in our opinion the judgment is erroneous, and the defendant’s exceptions to this are sustained to the extent of causing it to be modified.

As it is found that the debts named in the trust and mortgage to Arthur and to the defendant were bona fide, the defendant Phi] lips should not be held liable for the money paid on these debts before the levy of the attachment. The defendant Phillips should only be held liable to plaintiff for the value of T. E. Warren’s half of the property at the date of the levy of the attachment. The defendant T. E. Warren is entitled to his personal property exemption. Gamble v. Rhyne, 80 N. C., 183; Commissioners v. Riley, 75 N. C., 144; Duvall v. Rollins, 71 N. C., 218.

It appeared on the former appeal that the defendant T. E. Warren, was the owner of $400 or $500 worth of personal property, not included in these assignments, and that there were judgments at that time against him in favor of other creditors. It is therefore probable that his personal property exemption has been assigned to him. If it has, he will be entitled to retain the same; and if it does not now amount in value to $500 he may have the deficiency made good by any other personal property he may have. And if there is a deficiency of said Warren’s personal property, including what has heretofore been,allotted to him as an exemption, as well as that which has not, to amount to $500, then this deficiency must he allowed him out of the amount of the plaintiff’s recovery in this action. But as the plaintiff has a specific hen on the amount of his recovery, the defendant Warren’s other personal property must be first resorted to in allotting this exemption, and the amount recovered by the plaintiff in this action can only be resorted to for the purpose of supplying any deficiency that may be after appropriating his other personal property.

If any part of the recovery of the plaintiff, based upon the value of the property attached, shall be taken to make out the personal property exemption of the defendant T. E. "W arren, this amount will be deducted from or entered as a credit on the judgment against the defendant Phillips, but not as against Warren.

We see no reason why the plaintiff should not recover his costs against both defendants, Warren aud Phillips. The judgment will be modified as indicated in this opinion.

Modified and affirmed.