Glover v. . Flowers

7 S.E. 579, 101 N.C. 134

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Merrimon, J.,

(after stating the case) Such irregularity has been allowed to prevail in the course of this special proceeding as we think the Court below ought not to tolerate, much less encourage.

Although it was begun in vacation before the Clerk of the Court, as it should have been, still, at once, upon the filing of the petition and answer, raising issues of fact, it was transferred to the regular civil issue docket, and treated continuously thereafter as an action brought to the regular term of the Court. The plaintiff was allowed to file an amended ■complaint, and allege therein a cause of action distinct from the purpose of the special proceedings proper, that ought to have been the subject of an independent action; that is, he was allowed, in aid of the purpose of the special proceeding, to directly attack, as by a separate action, the decree in a .suit began, heard and determined in the late Court of Equity, for fraud in procuring it — to try all the issues of law and fact arising in that respect, and to determine the whole matter upon the merits. So far as appears, there was no objection to this on the part of the defendants or the Court. The ■defendants filed their answer to the amended complaint/and the whole case thus constituted was tried as to all the questions raised in the special proceeding proper, and also as to the alleged fraudulent suit and the decree therein in the late ■Court of Equity. This is very objectionable, because it is irregular, inconvenient and confusing, and not in accordance with the course of procedure prescribed by law. Besides, it tends to impair the integrity and stability of regular methods of procedure essential to the due administration of public justice. It is a serious mistake to act upon the supposition that actions can be conducted in Courts of Justice without regard to established methods of procedure — that parties and Courts may regard and disregard them, hoping thereby to save time and labor. It seldom happens that a departure from them fails to produce confusion and dissatisfaction, and not infrequently some parties suffer injustice by it.

Notwithstanding the irregularities in this case adverted to, we are of opinion that the action of the Court must be upheld, because the Court had jurisdiction of the parties and the subject matter of the litigation, and no objection was raised by the defendant to the disorderly course of procedure, and it had at least the implied sanction of the parties and the Court. Very certainly it could not be upheld if objection had been made in apt time. Southall v. Shields, 81 N. C., 28; Merrill v. Merrill, 92 N. C., 665; Costin v. Bryan, 93 N. C., 302; Ely v. Early, 94 N. C.. 1; Clendening v. Turuer, 96 N. C., 416; Railroad v. Smith, 98 N C., 509; Peebles v. Norwood, 94 N. C., 167; Loftin v. Rouse, Id., 508.

The defence relied upon by the defendants appellants that the bond of the intestate on which the judgment in favor of Kizziah Eatman was founded was, as to the administrator, barred by the statute of limitations, was settled adversely to the appellants by this Court in a former appeal in this-case. Glover v. Flowers, 95 N. C., 57. It was not barred as to the administrator for the reasons stated in the opinion of the Court in that appeal. Nor was there any statutorj- bar of it in favor of the heirs at law of the intestate. In the absence of personal assets the land of the intestate and ancestor ¡remained liable to be sold to make assets to pay his debts until they were all discharged. The estate of this intestate is governed and to be settled and his debts paid as required by law and statutory regulation as the same prevailed next before the first day of July, 1869. (The Code § 1433.) Glover v. Flowers, supra. There was no statutory bar prior to that time as there is now in favor of the heir. If before the time mentioned the heir or devisee sold the land of the intestate or testator, within two years next after the. probate of the will and the qualification of the executor or the granting of letters of administration on his estate, as the case might be, such sale would be void as to creditors, the executor or administrator of the deceased debtor. (Rev. Stats. Ch. 46, § 61.) If the heir or devisee should sell the land after two years the creditor or executor or administrator would be entitled to have the price realized by him for the land to pay debts of such debtor. Hinton v. Whitehurst, 68 N. C., 316; Same v. Same, 71 N. C., 68; Moore v. Shields, 70 N. C., 327; Badger v. Daniel, 79 N. C., 372. The Court therefore properly decreed that the statute could not avail the appellants.

The Court adjudged that the deed of trust, the decree in the suit in the Court of Equity mentioned, substituting a trustee, his sale of, and deed conveying the land to John W. Williams, and the deed of the latter conveying the same to the defendant, Virginia Flowers, were void for fraud. The appellants requested the Court to instruct the jury that there was no evidence of the alleged fraud. We cannot hesitate to decide that the Court properly declined to give such instructions.

There clearly was such evidence, part of it tending strongly to prove fraud, while another part of it, taken by itself, had less point and force, but the whole, taken together, unquestionably made evidence to be submitted to the jury. There was evidence going to show the insolvency of the intestate at the time he executed the deed of trust; that the debt intended to be secured by it was unfounded; that part of the property embraced by the deed was perishable, such as cows, fodder, pork and the like; that the intestate remained in possession of and used the property until his death; that he manifested much anxiety as to the bond held by Peel, guardian; the close relationship and connection of the principal parties connected with the alleged fraud ; the exceptional character of the statements of fact and charges in the bill in equity — the exceptional provisions in the decree directing the conveyance of the property, both real and personal, to the substituted trustee,; that the administrator of the intestate made no defence to the suit in equity — there was such and like evidence — there were facts and circumstances in evidence that, of themselves, proved very little, hut which, all taken together in their just bearing upon each other, made evidence to go to the jury, the weight of which was to be determined by them.

We think, also, that there was evidence of collusive fraud on the part of Fulghum, administrator. The evidence went to show that he knew the parties charged with the fraud— their close relationship — the condition of the estate of his intestate; that he knew of the imputed fraud as to the deed of trust; that he made no effort to subject the land to the payment of the debt of his intestate; that he made no defence whatever to the bill filed against him in the Court of Equity, the decree in which required him to convey the title to the personal property to the substituted trustee. These facts and others, taken in connection with the other evidence, constitute some evidence of collusion on the part of the administrator, to be submitted to the jury.

It was contended, on the argument, that the Court erroneously left it to the jury to determine what was evidence of the relationship of Fulghum, administrator, to the other parties to the alleged fraud. There is no assignment of error presenting this point; but if there were, we think the Court did not leave it to the jury to be determined. There was a dispute between counsel as to whether certain evidence was given in that respect, and the Court told the jury it did not remember whether there was or not, and that “ it was their province” to determine whether there was such evidence before them, and if so, whether or not it satisfied them of the alleged fraudulent combination. The Court did not remember whether the particular evidence in dispute was before them, and told them, that they could and might determine whether there was or not. This seems to be substantially what the Court said and intended, and no more. It did not intend to leave it to the jury to decide what was or was not evidence, or its competency. It does not so fairly appear.

The depositions of witnesses were read in evidence on the trial. Certain exceptions to the competency of parts of the evidence were noted in them at the time they were taken, and these, or some of them, were insisted upon on the trial. These exceptions should have been disposed of before the trial, in the way pointed out in Carroll v. Hodges, 98 N. C., 418. But treating them as having been properly considered by the Court, the evidence objected to by the appellants was of slight importance, and it does not appear that any stress was laid upon it in the course of the trial, or that it probably influenced the action of the jury. That such evidence was not excluded, though perhaps not strictly competent, is not ground for a new trial. To entitle the complaining party to a new trial, because of the admission of incompetent evidence of slight importance, it should appear that he suffered, or might have suffered prejudice, by its admission. May v. Gentry, 4 D. & B., 117; Wagoner v. Ball, 95 N. C., 323.

We are, therefore, of opinion that the. judgment should be affirmed.

Affirmed.