McCullen v. Durham

229 N.C. 418

Opinion

Ekvin, J.

The trial court properly rejected the testimony of Maurice Durham under the well established rule of law that an express trust resting in parol cannot be engrafted in favor of the grantor upon a warranty deed conveying to the grantee an absolute and unqualified title in fee. Poston v. Bowen, 228 N. C. 202, 44 S. E. (2) 881; Loftin v. Kornegay, 225 N. C. 490, 35 S. E. (2) 418; Briley v. Roberson, 214 N. C. 295, 199 S. E. 73; Penland v. Wells, 201 N. C. 173, 159 S. E. 423; Waddell v. Aycock, 195 N. C. 268, 142 S. E. 10; Perry v. Surety Co., 190 N. C. 284, 129 S. E. 721; Blue v. Wilmington, 186 N. C. 321, 119 S. E. 321; Chilton v. Smith, 180 N. C. 472, 105 S. E. 1; Campbell v. Sigmon, 170 N. C. 348, 87 S. E. 116, Ann. Cas. 1918 C, 40; Ricks v. Wilson, 154 N. C. 282, 70 S. E. 476. Under the pleadings and proofs here, the plaintiff’s standing at the bar is not bettered a whit by the alleged nonpayment of the considerations recited in the deeds of 31 January and 26 August, 1941. This is true for the reasons stated in the famous case of Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028, where it was said: “The authorities are to the effect that in a deed of this character, giving on its face clear indication that an absolute estate was intended to pass, either by the recital of a valuable consideration or by an express covenant to warrant and defend the title, no trust would be implied or result in favor of the grantor by reason of the circumstance that no consideration was in fact paid.” The correctness of this observation was subsequently sanctioned by Walters v. Walters, 172 N. C. 328, 90 S. E. 304, and Jones v. Jones, 164 N. C. 320, 80 S. E. 430.

The defendant, Standard Fertilizer Company, excepted to the submission of the second and third issues upon the ground that they were not raised by the pleadings. It expressly waived the right to move for involuntary judgment of nonsuit under G.S. 1-183, but requested the court by written prayers to direct the jury to answer the second and third issues in its favor upon the hypothesis that no evidence had been adduced justifying findings for the plaintiff upon these issues, and saved exceptions to the refusal of the court to instruct the jury in accordance with such prayers. It also reserved exceptions to the judgment upon the assumption that it was not supported by the complaint. We are compelled to adjudge that these several exceptions were well taken.

It is undoubtedly true that a conveyance of her land by a wife to her husband is void if the officer taking the acknowledgment of the wife fails to state in his certificate his conclusions that the conveyance “is not unreasonable or injurious to her” as required by G.S. 52-12. Caldwell v. Blount, 193 N. C. 560, 137 S. E. 578; Barbee v. Bumpass, 191 N. C. 521. 132 S. E. 275; Davis v. Bass, 188 N. C. 200, 124 S. E. 566; Foster v. Williams, 182 N. C. 632, 109 S. E. 834; Wallin v. Rice, 170 N. C. 417, 89 S. E. 239; Butler v. Butler, 169 N. C. 584, 86 S. E. 507.

It is equally true that the law will not permit the salutary object of the statute to protect married women to be circumvented by indirection, and that a wife may not effectually convey her real estate to a third person to be held in trust by him for the husband or to be conveyed by him to the husband unless the examining or certifying officer incorporates in his certificate his conclusions that the conveyance “is not unreasonable or injurious to the wife.” Ingram v. Easley, 227 N. C. 442, 42 S. E. (2) 624; Fisher v. Fisher, 217 N. C. 70, 6 S. E. (2) 812; Garner v. Horner, 191 N. C. 539, 132 S. E. 290; Best v. Utley, 189 N. C. 356, 127 S. E. 337.

But G.S. 52-12 and the decisions thereon have no bearing on the deeds of 31 January and 26 August, 1941, because it clearly appears from the pleadings, when rightly construed, and from the testimony, when properly interpreted, that there was neither allegation nor evidence in the cause that the deed of 31 January, 1941, from the plaintiff and her husband, Junius McCullen, to Maurice Durham was made with any view to accomplishing an indirect conveyance of the plaintiff’s property to her husband. Coward v. Coward, 216 N. C. 506, 5 S. E. (2) 537; Davis v. Cockman, 211 N. C. 630, 191 S. E. 322. Indeed, the converse was the case, for both the averments of facts in the complaint and the evidence offered in their support pointed out in an emphatic manner that the deed in question was executed for a diametrically different purpose. The essential allegation and proof were not supplied by the mere circumstance that a third person conveyed to a husband land which had been transferred to such third person by the wife seven months previously.

Notwithstanding these matters, the trial court made the answers of the jury to the second and third issues hinge solely upon whether the plaintiff had established “by the greater weight of the evidence her contention” that the deed of 31 January, 1941, “was void for that it having been conveyed to Mr. McCullen there was a requirement of G.S. 52-12 which was not complied with.”

The error in this is manifest. The initial mistake of the trial court lay in submitting the second and third issues to the jury. This was improper for these issues did not arise on the pleadings. G.S. 1-198; Fairmont School v. Bevis, 210 N. C. 50, 185 S. E. 463; Dickens v. Perkins, 134 N. C. 220, 46 S. E. 490. But after submitting these issues to the jury, the court ought to have directed a verdict thereon for the defendant, Standard Fertilizer Company, in accordance with its prayers for instruction because the burden of proof on these issues rested on the plaintiff and there was no evidence to justify a finding thereon in her favor. Timber Co. v. Cozad, 192 N. C. 40, 133 S. E. 173; Thomas v. Morris, 190 N. C. 244, 129 S. E. 623; Board of Education v. Makely, 139 N. C. 31, 51 S. E. 784. “The court may always direct a verdict against the party who has the burden of proof if there is no evidence in his favor, as where he fails to introduce any evidence, or if the evidence offered and taken to the true fails to make out a case.” McIntosh: North Carolina Practice and Procedure in Civil Cases, section 574. Besides, the judgment in this respect is not supported by the pleadings. Simms v. Sampson, 221 N. C. 379, 20 S. E. (2) 554; Caudle v. Morris, 160 N. C. 168, 76 S. E. 17. It awards the land in controversy to the plaintiff upon a theory entirely independent of that stated in her complaint. Balentine v. Gill, 218 N. C. 496, 11 S. E. (2) 456; Green v. Biggs, 167 N. C. 417, 83 S. E. 553; McFarland v. Cornwell, 151 N. C. 428, 66 S. E. 454. This the law will not countenance for the reason that the plaintiff must recover, if she recovers at all, upon facts alleged in her complaint. Barron v. Cain, 216 N. C. 282, 4 S. E. (2) 618; McCollum v. Chisholm, 146 ; Simpson v. Simpson, 107 N. C. 552, 12 S. E. 447; Willis v. Branch, 94 N. C. 142; Melvin v. Robinson, 42 N. C. 80.

Ordinarily the errors just noted would warrant the award of a new trial to appellant without any determination as to the rightness of its remaining exceptions. Here, however, the defendant, Standard Fertilizer Company, was not content to rest upon its denial of the plaintiff’s title. It expressly waived the privilege of moving for an involuntary judgment of nonsuit under the statute, and asked for a decree upon its cross-action or counterclaim establishing the validity of its claims. The fourth and sixth issues were designed to present this aspect of the case.

The court below set aside the verdict of the jury on these issues as a matter of law and not as a matter of discretion for the specifically designated reason that the admissions in the pleadings, the evidence, and the findings on other issues compelled it to adjudge “that the title to the lands was vested in Mary F. McCullen and not in Junius McCullen at all times from and after the 19th day of February, 1930.” This necessitates consideration of the assignments of error predicated on the denial of the appellant’s motion for judgment in its favor on the verdict, and the action of the court in setting aside the findings of the jury on the fourth and sixth issues. Akin v. Bank, 227 N. C. 453, 42 S. E. (2) 518.

When a judgment for the payment of money is duly docketed in the Superior Court of a county, it becomes a lien on the real property in such county owned by the judgment debtor at the time of the docketing or acquired by him “at any time thereafter, for ten years from the date of the rendition of the judgment.” G.S. 1-234; Durham v. Pollard, 219 N. C. 750, 14 S. E. (2) 818; Thompson v. Avery County, 216 N. C. 405, 5 S. E. (2) 146; Keel v. Bailey, 214 N. C. 159, 198 S. E. 654. Since the plaintiff was unable to establish her allegation that Junius McCullen took title under the deed of 26 August, 1941, in the capacity of a trustee for her, it inevitably followed upon the record here presented that Junius McCullen was the absolute owner of the property in controversy under such deed, and that the lien of the Faison judgment and that of the judgment of the Standard Fertilizer Company attached to such property at the moment that the title vested in Junius McCullen. Trust Co. v. Sterchie. 169 N. C. 21, 85 S. E. 40; Moore v. Jordan, 117 N. C. 86, 23 S. E. 259. Therefore, the trial court erred in vacating the finding of the jury on the sixth issue as a matter of law, and in refusing to adjudge that the judgment of the Standard Fertilizer Company constitutes a lien upon the property in issue.

The plaintiff asserts, however, that the action of the court in setting aside the verdict on the fourth issue must be sustained even if title to the 50 acres did vest in Junius McCullen under the deed of 26 August, 1941, on the ground that the execution sale was not consummated until the enforcement of tlie Eaison judgment had become barred by the lapse of time. The appellant counters this contention with the proposition that the plaintiff ought not to be permitted to question the validity of the sheriff’s deed because she does not claim the 19 acres covered by such instrument through or under the judgment debtor. If it be conceded that the argument underlying this position be sound, still it has no relevancy to the cross-action or counterclaim of the Standard Fertilizer Company, which is necessarily based on the theory that the sheriff’s deed is operative against the plaintiff and her daughter, Maurice Durham, even in their respective capacities as widow and heir of the judgment debtor.

It is settled law that “an officer making a sale under execution acts solely by virtue of the statutory authority conferred, which must be strictly pursued; and where such power does not exist nothing passes by the sale.” 33 C. J. S., Executions, section 199.

Our statutes provide, in substance, that with the exception of the lien of a judgment upon a homestead duly allotted, the lien of a judgment for the payment of money expires at the end of ten years from the date of its rendition, and that no execution may be issued thereon after the lien is gone. G.S. 1-234; G.S. 1-306; Exum v. Railroad, 222 N. C. 222, 22 S. E. (2) 424; Lupton v. Edmundson, 220 N. C. 188, 16 S. E. (2) 840. These statutes clearly manifest the legislative intent that the process to enforce the judgment lien and to render it effectual must be completed by a sale within the prescribed time. Cheshire v. Drake, 223 N. C. 577, 27 S. E. (2) 627. Hence, it follows “that the lien upon lands of a docketed judgment is lost by the lapse of ten years from the date of the docketing, and this notwithstanding execution was begun, but not completed, before the expiration of the ten years. The only office of an execution is to enforce the lien of the judgment by a sale of the lands, and this must be done before the lien is lost. The execution adds nothing by way of prolongation to the life of the lien.” Hyman v. Jones, 205 N. C. 266, 171 S. E. 103.

We must now apply these principles to the case at bar. The land described in the sheriff’s deed was exposed to sale on 22 September, 1941, under execution issued on the Faison judgment, and the Standard Fertilizer Company thereupon became the last and highest bidder for it. This event took place within ten years from 28 September, 1931, the date of the rendition of the Faison judgment. But under the pertinent statute now embodied in G.S. 45-28 the sale under execution could “not be deemed to be closed under ten days” in order to afford opportunity for an increase in the bid. C.S. section 2591; P. L. 1933, C. 482. During the interval specified by the statute, the Standard Fertilizer Company had no rights in law or in equity by reason of its bid. It occupied the status of a proposed purchaser or preferred bidder, whose offer to purchase or bid the sheriff was precluded by law from accepting during the period allowed by statute for an increase in the bid. Building & Loan Assn. v. Black, 215 N. C. 400, 2 S. E. (2) 6; Richmond County v. Simmons, 209 N. C. 250, 183 S. E. 282. The tenth day after 22 September, 1941, the date the property was exposed for sale at public auction, was 2 October, 1941, which was the earliest possible date that the sale under execution could have been deemed closed, or consummated, and 2 October, 1941, was more than ten years after 28 September, 1931, the date of rendition of the Fai-son judgment. Thus, the sale of the 19 acres under the execution was not completed during the life of the lien of the Faison judgment, and the sheriff’s deed passed nothing to the Standard Fertilizer Company because his statutory authority to enforce the lien of the judgment by a sale of the land ended the instant the judgment lien expired. It follows that the court did not err in setting aside the finding on the fourth issue and in adjudging that the sheriff’s deed was invalid.

This holding does not conflict with the authorities indicating that mere delay on the part of the sheriff in executing his deed or in making formal return of his proceedings does not adversely affect the rights of the purchaser at a sale under execution. 33 C. J. S., Executions, Section 270, 318; Freeman on Executions (3d Ed.), Vol. 3, section 328. Likewise, if does not run counter to the general rule that a sheriff’s deed made in pursuance of an execution sale operates from the day of the sale and not from the date of the deed. Dobson v. Murphy, 18 N. C. 586; Cowles v. Coffey, 88 N. C. 340. The Standard Fertilizer Company never acquired any right to a deed from the sheriff because in legal contemplation there was no sale under execution in the case at bar.

In closing, it is observed that there is no basis for the contention of the appellant that the plaintiff and her daughter, Maurice Durham, were estopped by their acts to question the validity of the sheriff’s deed on the ground that the sale under execution was not consummated during the life of the Faison judgment. When viewed in the light most favorable to appellant, any such acts prior to the sale amounted at most to a representation that title was then vested in Junius MeCullen. Manifestly, conduct subsequent to the sale did not induce the appellant to become a bidder at the sale. 31 C. J. S., Estoppel, section 71.

The errors of the trial court do not require a retrial of the issues joined between the plaintiff and the appellant for the determinative facts have been established by the answer to the sixth issue and the admissions in the pleadings. For this reason, the cause is remanded to the trial court with direction that it modify its decree so as to adjudge that the judgment which the Standard Fertilizer Company recovered against Junius Mc-Cullen on 3 April, 1939, constitutes a lien on the 50 acres described in the pleadings. As thus modified, the judgment rendered below is affirmed. This course fully protects the rights of the Standard Fertilizer Company, and does not disturb the judgment as to the other defendants.

Error and remanded.