Osborne v. . Wilkes

13 S.E. 285, 108 N.C. 651

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Avery, J.:

When the plaintiff rested upon the supposition that the testimony offered by him was sufficient to be submitted to the jury as prima facie evidence of his right to recover, the Judge asked counsel in presence of jury, in effect, whether they did not think that the defendant might safely demur, and required both parties to give him the benefit of their views upon the question of law thus propounded ? Wittkowsky v. Wasson, 71 N. C., 451; State v. Brown, 100 N. C., 519. After hearing the argument, the Court directed the defendants to proceed, and told the jury then, as they were subsequently cautioned in the charge, to bear in mind the fact that the Court had no right to intimate, and had not, in fact, intimated, an opinion in favor of the defendants by requiring argument, or against them by requiring them subsequently to develop their defence. The plaintiff had promptly objected, and excepted, when the inquiry was first addressed to his counsel.

The statute (The Code, §413) prohibits the Judge who presides at the trial from expressing an opinion “in giving a charge to the jury, either in a civil or a criminal action,” that a fact has or has not been fully proven. Neither the letter nor the spirit of the law was violated. The jury were cautioned after the argument, and warned subsequently in.the instructions given them, that they must draw no inference prejudicial to either of the parties from the request for an argument on the one hand, or the order made at its conclusion on the other. There was no good ground for complaint on the part of either. State v. Chastain, 104 N. C., 904; McCurry v. McCurry, 82 N. C., 296.

“This cause was given to the jury about 12 o’clock on Saturday of the first week of the term; about 5 o’clock p. m. of the same day they came into Court and stated to his Honor that they were unable to agree. Pie inquired whether they wished instructions upon any matter of law, and stated that he would be glad to give them special instructions upon any point of law about which they were in doubt, but if they were differing as to matters of fact in the case he could not help them. They responded that they were differing as to matters of fact, but thought it was utterly impossible for them to agree. The Court remarked that there were two weeks more of the Court, and as it was important to the parties that the jury should agree, he could give them plenty of time to consider the case. Upon further discussion and consideration of the case, he thought, they would be able to agree upon a just and proper verdict, and notified the Sheriff to provide them with comfortable quarters, and keep them together, in charge of an officer. They were accordingly kept at a hotel in charge of an officer until Tuesday evening following, when they rendered the verdict recorded. No exception was taken to the remark of the Court until after the verdict.”

The law anticipates a verdict in every case after the jury have had a reasonable time for consideration. State v. Ephriam, 2 Dev. & Bat., 171. The Judge had the powrer to discharge the jury in accordance with their request, or in the exercise of a sound discretion to detain them till the end of the term. It is not error to tell them what the law provided in reference to their detention, and direct that they should be taken to comfortable quarters for further consideration and discussion of the issues in reference to which they had not agreed. Hannon v. Grizzard, 89 N. C., 115.

The jury, selected by the County Commissioners on account of their high character, are supposed to have sufficient intelligence to understand the extent of the Judge’s power, and to have such conceptions of their own duty that they will not be driven to return a hasty and unjust verdict for fear of being kept in comfortable quarters, but separated from their families, for a few days or for two weeks, if they could not sooner concur as to their findings. If the typical jurors chosen under our law are so wanting in intelligence and virtue that they can be swerved from the line of rectitude by such considerations, then we should so reform our system as to insure the selection of men who are guided by principle, and thus bring our practice and theory into harmony.

The remark of the Judge did not constitute sufficient ground for exception, if objection had been made in apt time. If the tendency of telling the jury the extent of the authority vested in the Court was to induce them to agree, neither party could say in advance that it was calculated to foreshow or indicate the particular conclusion which it would be proper for them to reach. It is unreasonable to entertain this objection, made for the first time after verdict, if, from the nature of the case, it would have been available as a ground of exception at an earlier stage of the proceeding.

It is settled law in North Carolina that our statutes (chapter 47 of The Code) impose no limit upon the “wife’s power to acquire property by contracting with her husband or any other person, but only operate to restrain her from, or protect her in, disposing of property already acquired by her.” Battle v. Mayo, 102 N. C., 439; Stephenson v. Felton, 106 N. C., 121; George v. High, 85 N. C., 99; Dula v. Young, 70 N. C., 450; Kirkman v. Bank, 77 N. C., 394. The law restricts her jus clisponendi — not her jus acquirendi.

Though a married woman may not be able to bind herself by a contract for the payment of the purchase-money, yet, if the vendor chooses to take the risk of collecting the debt from her, neither her husband nor his creditor will be allowed to question the validity of a bond for title or deed executed to her in good faith, or to claim profits accruing from a re-sale of any interest in land which she may have acquired under such agreement or conveyance. No complaint was ever made by McAden or the bank, and the purchase-money was ultimately paid and the lien upon it created by the mortgage discharged.

Where the wife has no separate estate, or where she does not bind such separate estate, as she has, to. secure the payment of the purchase-money for other property bought by her on a credit, the contract, nevertheless, enures to her benefit, and she holds the property, when paid for, in her own right. 2 Bishop Married Women, § 80; Burns v. McGregor, 90 N. C., 222; Knapp v. Smith, 27 N. Y., 277. If, therefore, after R. Y. McAden had bought at execution sale the land of her husband, known as the Navy Yard property, the feme defendant contracted, through Smedburg, Wilson, or even through her husband, acting in good faith as her agent, for the purchase of the property in her own right, and Smed-burg advanced $3,000 of the purchase-money, taking a conveyance absolute upon its face of her equity of redemption from her husband and herself to secure its re-payment, while McAden, for the bank, conveyed the property to her absolutely, taking at the same time a mortgage from her and her husband to secure the residue of the purchase-money ($12,000), due in four equal annual installments, these transactions vested in her the equitable title to the land, subject, first, to the payment of the notes for the purchase-money, with interest, and then to the amount advanced by Smedburg. While her agreement to pay the purchase-money could not be enforced directly, she could, by joining her husband, make a valid conveyance of her own land, whether by an absolute deed or a mortgage. Newhart v. Peters, 80 N. C., 168. In this way she pledged the land as security for the payment of the residue of the purchase-money, though she did not bind herself personally.

Where land is conveyed to a married woman by a person other than her husband, every presumption is in favor of the validity of such a conveyance, as is the rule in reference to other deeds. 2 Bishop supra, § 138. The burden of proving the deeds of both McAden and Alexander to Mrs. Jane Wilkes to be fraudulent was upon the plaintiffs. She was not required to show affirmatively that she purchased with her own money or upon her own credit. A different rule might have applied if the land had been conveyed by her husband instead of by the purchaser at execution sale. While her buying on a credit from McAden does not per se affect the validity of the conveyance to her, the counsel for the plaintiff had the right, which they doubtless exercised, to insist before the jury that .her purchase on a credit, when her separate funds held under her marriage contract could not be invested outside of the State of New York unless in pursuance of a judicial decree of the Courts of that State, was a suspicious circumstance, which with others tended to show that the husband used the wife’s name with her assent to buy the property for his own benefit, and prevent his creditors from again selling it to satisfy his debts. All of the circumstances enumerated in the carefully prepared brief of plaintiff’s counsel are, at most, but badges of fraud to be considered by the jury as tending to establish the purpose of the parties in the execution of the deed. The evidence as a whole was not even sufficient to raise the presumption in fact, much less in law, that the first conveyance (of October 14th, 1870) to Mrs. Wilkes was fraudulent. Brown v. Mitchell, 102 N. C., 347; Woodruff v. Bowles, 104 N. C. 197; Harding v. Long, 103 N. C., 1; Berry v. Hall, 105 N. C., 154. There is no presumption arising from the testimony that she used the funds of her husband in making the purchase. The Judge in his charge enumerated carefully the circumstances relied on by the plaintiff as badges of fraud, and also recapitulated the testimony offered by the defendants in explanation. There was no error in giving or refusing instruction in relation to the first issue involving the character of the deed conveying the Navy Yard property to Mrs. Wilkes. The general principles already stated, if applied to the testimony bearing upon that issue, will dispose of all exceptions arising out of any view of it.

If the feme defendant, through her agent acting in good faith, had legal capacity to purchase, even on a credit, the Navy Yard property, it would follow that the fund realized as a profit from a subsequent sale of it would constitute a part of her separate estate, and she could use that fund, or $1,000 of it, in making a cash payment for the property on which the dwelling-house and foundry are now located, and the deed of Alexander to her would be presumptively valid as would be the mortgage deed executed by her and her husband, by which they reconveyed the land to Alexander to secure the payment of the residue of the purchase-money ($8,000). The same reason and the same authorities that were offered to sustain the presumptive validity of the transaction with McAden applied to the latter trade with Alexander. The consideration of one thousand dollars paid down did move from Mrs. Wilkes, as it constituted a part of her legitimate profit from the former sale, if her deed for the Navy Yard property was valid.

Neither of the deeds was fraudulent as to the feme defendant unless she participated in the fraud, or she or her agent had notice of a fraudulent purpose or combination to hinder, delay or defraud the creditors of her husband before she purchased. Battle v. Mayo and Woodruff v. Bowles, supra.

Without discussing them in detail, we have disposed of the exceptions to the refusal of the Court to give the instructions asked, numbered respectively 1, 3, 6, 7, 8, 31, 15 and those relating to instructions requested by the defendants upon the same subject numbered 1 and 2. The objection urged in the plaintiff's brief, that the verdict was against the weight of the evidence, is one that is addressed entirely to the discretion of the nisi prius Judge when made below. His refusal to grant a new trial on that ground is not reviewable, and such motions will not be entertained when made for th e first time in the appellate Court. Whitehurst v. Pettipher, 105 N. C., 40. An appeal lies only from the refusal to set aside the verdict on the ground that there was no evidence, or not in law sufficient evidence to support it.

Inadequacy of price is not of itself in any case sufficient ground for setting aside a conveyance as fraudulent, but is a suspicious circumstance to be considered in connection •with other testimony tending to show fraud in procuring its execution. Berry v. Hall, supra; Potter v. Everett, 7 Ired. Eq., 152; Bump, on Fraud. Con., p. 36; J. Kerr on F. & M., 189. Mrs. Wilkes had the same right to buy her husband’s land with her funds when sold at execution sale, or from a purchaser at such sale, that any other person had. If additional testimony were offered tending to show a fraudulent combination to prevent a fair competition of bidders on the part of her husband and others, in which she participated, or of which she had notice before buying, then the jury would be justified in considering the inadequacy of the price paid for the Capps Mine in connection with other badges of fraud, and with the fact that she was the wife of the debtor. Where the husband contracts to sell to the wife or convey property to her in payment of an alleged debt, or for an alleged money consideration paid by her, the burden is upon her to show the bona fides of the transaction. Brown v. Mitchell, supra. But where she claims under a Sheriff’s deed and an execution sale, there is no such presumption as would arise from a direct sale and conveyance by him to her. The subsequent payment of the whole debt due the plaintiff in execution by some one, and the fact that the husband was the defendant in execution, were the circumstances relied on, in connection with the inadequacy of price, to establish the alleged fraud. If these, standing alone, were sufficient to be submitted, as the Judge did, to the jury to show a fraudulent combination, it will not be insisted that they are strong enough to raise such a presumption of fraud as would, without explanation, justify the Court in instructing the jury to respond Yes to the fourth issue. We are aware that there is some apparent conflict of authorities in those cases where the property has been sold at judicial sale, as' to the weight of certain evidence tending to establish fraud, but it is now settled that, since separate Courts of Equity were abolished, the Judge has no right to instruct the jury as to the weight of evidence when it is not sufficient to raise a presumption of the truth of the allegation of fraud. Berry v. Hall, supra; Ferrall v. Broadway, 95 N. C., 551.

Under our present Code, a married woman may purchase property and carry on business on her separate account, and through her husband as agent. The fact that she employs him and supports him dpes not raise a presumption of fraud, though it is competent in trying the issue to show his manner of conducting the business. Brown v. Mitchell, supra; Abbott’s Tr. Ev., 171 and 172; Rankin v. West, 25 Mich., 195; Kluender v. Linch, 4 Keyes (N. Y.), 363. Her title to the property is not impaired, nor do his creditors acquire any interest in the profits because he gives his services without other compensation than an indefinite allowance applied by her permission to the payment of his expenses. Abbey v. Deyo, 44 N. Y., 345; Knapp v. Smith, supra; Gage v. Douchey, 34 N. Y., 293; Barkley v. Wells, 35 N. Y., 518. In Manning v. Manning, 79 N. C., 293, the right of the wife to hold the husband, as her agent, to account for the rents and profits of her lands, though received by him without objection, was distinctly recognized.

While creditors may subject one’s ehoses in action, including even a claim for compensation due him for his services, under an express or implied contract, in a supplementary proceeding, they have no lien upon his skill or attainments, nor can they compel him to exact compensation for managing his wife’s property, or collect from her as on a quantum meruit what his services were reasonably worth. 2 Bishop, supra, §§ 453, 454, 299, 300. She may remunerate him by furnishing him a support, tie may, if he choose, serve her without compensation. 2 Bishop, supra, §439; Corning v. Flower, 24 Iowa, 584. Indeed, a creditor cannot collect from any person compensation for services rendered by his debtor with the understanding that it was gratuitous. 2 Bishop, supra.

We think, therefore, that there was no error in the refusal of the Court to give the plaintiff’s instruction numbered 4, nor in the amendments made to those numbered respectively 5 and 13. The plaintiff certainly has no just ground to complain of the charge given upon that point, and the defendants, in view of the verdict rendered, have' no reason for objecting.

In the trial of issues like those • submitted in our case, where so many competent circumstances are adduced as badges of fraud, it necessarily opens the door quite as wide for the introduction of evidence in rebuttal. When so much testimony had been offered for the purpose of showing an intent on the part of Wilkes and his wife to evade the payment of the debt to Coates Bros., it was competent to show in rebuttal that, with full knowledge that the judgment was. barred by the statute of limitations, he had voluntarily allowed them to renew it.

The feme defendant was not a party to the suit brought in the Superior Court of Rowan County by Coates Bros., on the 20th of March, 1874, and in which judgment was recovered and proceedings supplementary to execution were instituted. The affidavit, which was the basis of the supplementary proceedings, was dated September 7, 1874. In obedience to an order dated September 24, 1874, the defendant John Wilkes appeared before J. M. Horah, Clerk of said Court, during the same month and was examined. No further action was taken till the 21st of April, 1883, when another order was issued upon a similar affidavit, in obedience to which John Wilkes was again summoned before said Clerk and examined, first on the 8th of May, 1883. John Wilkes again appeared, on notice, December 17, 1883, when he and F. W. Hall and others were examined before said Horah, Clerk. The deposition of George M. Coates, Jr., was taken before a Commissioner of Affidavits on the 3d of January, 1884, to be read in said proceeding. From an order of Graves, Judge, refusing a motion to appoint a receiver upon the testimony of the witnesses examined, and to compel the defendant John Wilkes to produce the books of the Meck-lenburg Iron Works, kept by or under the direction of John Wilkes for his wife, Mrs. Jane Wilkes, the plaintiffs appealed, and the judgment below was reversed. Coates v. Wilkes, 92 N. C., 376. From an order made by Montgomery, J., at August Term, 1885, and subsequently amended, appointing the plaintiff Osborne receiver, and empowering him to bring suit, etc., and restraining Mrs. Wilkes, who was not a party, from disposing of or transferring certain property, the defendant John Wilkes appealed. Coates v. Wilkes, 94 N. C., 174. This Court declared that it was error to order that she be restrained from transferring property claimed by her, when she was not a party and had not been ordered to appear for examination, or otherwise notified of the decree, though, in other respects, the judgment of the lower Court was affirmed.

Accordingly, the plaintiff, as receiver, caused the summons in this action to be issued against the defendant John Wilkes and his wife on the 20th day of August, 1886.

The exceptions to the charge given by the Court at the request of the defendant, raised the question whether what was called the first cause of action, brought for the recovery of the Mecklenburg Foundry property, had been barred by the lapse of time since the right of action accrued. The plaintiff in his complaint demanded judgment that the deed conveying the Mecklenburg Foundry property to the defendant Jane Wilkes he declared void, and that she be declared a trustee of said property for the benefit of the creditors of John Wilkes, and that she be required “to surrender the said lot, buildings, machinery and all things thereunto belonging or used in said foundry and shops to the plaintiff as receiver,” etc., and that she and John Wilkes be “decreed to account with the plaintiff for use and occupation, rents,” etc. The case was one solely cognizable in a Court of Equity, and therefore, without regard to the amendment of 1889, the plaintiff’s right to have the defendant Jane Wilkes declared a trustee for Coates Bros., was barred three years after the discovery of the fraud by Coates Bros., or three years after, by the exercise of reasonable diligence, they might have discovered it. The Code, § 155, subsec. 9; Day v. Day, 84 N. C., 408; Lanning v. Commissioners, 106 N. C., 511; Hulburt v. Douglas, 94 N. C., 122 ; Jaffray v. Bear, 103 N. C., 165. This action is brought with the special view of declaring Mrs. Wilkes, who was not a party to the former action or proceeding, a trustee, and therefore, to her plea of the statute of limitations, it is not sufficient to reply that this action (as in Hughes v. Whitaker, 84 N. C., 640) was brought in aid of the former suit. The right of action accrued as xo her when the fraud was, or might, by due diligence, have been discovered. If the testimony of George N. Coates, Jr., a member of the firm of Coates Bros., be taken as true, John Wilkes told him, in the year 1871, that he conducted the business in his wife’s name “because his creditors would hamper him” if he conducted it otherwise. If Coates Bros, had notice that Wilkes used his wife’s name in 1871 to avoid embarrassment on account of his debts, being then creditors, a cause of action'accrued at that time in their favor. After their right to equitable relief was barred by the lapse of time, a receiver appointed at their instance could not recover when the statute was pleaded by Mrs. Wilkes.

In so far as the action was prosecuted -for the purpose of recovering from the feme defendant the possession of specific articles of personal property, or of compelling her to account for the use of the personal property, or the rent of real property, it was clearly barred after the three years from the time when the right of action accrued. The Code, § 155, subsec. 4.

If the first cause of action had not been barred in three years under the subsection of section 155 of The Code as to Mrs. Wilkes, she might clearly have availed herself of the general provision (The Code, §158), and therefore it was not error to tell the jury that the first cause of action was barred' within ten years after the right to bring it accrued. The cases of Dobson v. Erwin, Bridgers v. Moye, and others cited, were decided long before either of the three statutes upon which the rulings of his Honor below rested were enacted as a part of the Code of Civil Procedure in 1868. Before that time there wTas no. limit, short of twenty years, to the right to follow the funds of a debtor fraudulently invested in the name of anothei, except where the statute in relation to the abandonment of an equity (Rev. Code, ch. 65, § 19, Laws of 1826, ch. 28, §2) applied.

With full and fair instruction the jury, as it was their province to do, passed' upon the good faith of the parties interested in the transactions in reference to the sale of the “Navy Yard property” and the lot on which the Mecklen- burg Foundry is located, as well as in the purchase of the Capps Mine. There was testimony tending to throw a cloud of suspicion over the ti’eaties that culminated in the conveyance of each of the three tracts of land to the feme defendant; but this may always be expected where-the wife purchased property, making little if any outlay of money, and, after placing her husband as agent in charge of it, realizes a large profit or receives an extraordinary income. There was no testimony offered by the plaintiff that raised a presumption of fraud, in either purchase, so as to shift the burden of proof to the defendants.

We have not adverted to the large number of cases cited, and for the most part decided by the Supreme Court of Pennsylvania, in which a different view is taken as to the right of married women to acquire property by purchase during coverture, and in reference to the weight of evidence bearing upon issues of fraud. We must be governed by our own Constitution and laws, and by the construction given to them by this Court. The adoption of our Constitution embodying especially Article 10, sec. 6, and the enactment immediately thereafter of chapter 47 of The Code (Laws of 1868-9, ch. 122), marked a new era in our law affecting the rights of married women.

Having thus disposed of all of the assignments of error that were insisted on here, we conclude that the judgment of the Court below must be affirmed.

Davis, J., did not concur.

Per curiam. Affirmed.