Smith-Douglass v. Kornegay

318 S.E.2d 895, 70 N.C. App. 264, 1984 N.C. App. LEXIS 3636
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 1984
DocketNo. 834SC1039
StatusPublished
Cited by8 cases

This text of 318 S.E.2d 895 (Smith-Douglass v. Kornegay) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith-Douglass v. Kornegay, 318 S.E.2d 895, 70 N.C. App. 264, 1984 N.C. App. LEXIS 3636 (N.C. Ct. App. 1984).

Opinion

BECTON, Judge.

This appeal presents one narrow question, whether the trial court properly granted summary judgment to creditors seeking to have a transfer of real estate declared void. We find a material issue of fact as to adequacy of consideration, and we, therefore, reverse.

I

At the time these events occurred, the Kornegay defendants were farmers, with two main farming operations. One farming operation belonged to Ellis Gerald Kornegay (Gerald Kornegay) and his wife, Connie, and the other belonged to Gerald’s father, Cecil Kornegay, and his wife Jean. Kelvin Kornegay, Gerald Korne-gay’s brother, had recently graduated from high school and lived with his father. Smith-Douglass, Inc. (SDI), a fertilizer supplier, and First-Citizens Bank & Trust Company (FCBT), held notes totalling $124,000 from Gerald Kornegay for moneys advanced for farm supplies and operating costs.

On 7 March 1982 Gerald and Connie Kornegay transferred three parcels of land to members of their family: a 100-acre tract and a two-acre tract to Cecil and Jean Kornegay, and an 11-acre tract to Kelvin Kornegay. Gerald Kornegay thereafter defaulted on the SDI and FCBT notes. The two creditors brought actions, later consolidated, on the notes themselves and also to void the transfers as fraudulent. On the creditors’ motion for summary judgment, supported by the depositions of all five Kornegays, the trial court rendered judgment on the notes and declared the transfers void. From this ruling, the Kornegays appeal.

[266]*266II

The Kornegays do not contest, in either their assignments of error or their brief, the grant of summary judgment on the notes. Therefore the propriety of that portion of the court’s order is not challenged by this appeal, and we accordingly affirm it. 4A N.C. Gen. Stat. App. I 2(A), N.C. R. App. P. 10(a), 28(a) (Supp. 1983); State v. Brothers, 33 N.C. App. 233, 234 S.E. 2d 652, disc. rev. denied, 293 N.C. 160, 236 S.E. 2d 704 (1977). Only the portion granting summary judgment on the conveyances claim remains.

HH I — I I — 4

Summary judgment is proper only when the forecast of evidence shows that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Sharpe v. Quality Education, Inc., 59 N.C. App. 304, 296 S.E. 2d 661 (1982). The court must look at the record in the light most favorable to the non-movant in evaluating the evidence. Id. When a question of material fact exists on the record so viewed, the mov-ant has no right to summary judgment, and a summary judgment order will be reversed. Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E. 2d 672 (1972).

>

The pivotal question is whether there was sufficient consideration for the three transfers. If no sufficient consideration changed hands, then the conveyances were voluntary and void, since Gerald Kornegay admitted that he did not retain sufficient property to satisfy his debts. N.C. Gen. Stat. § 39-17 (1976). No question of fraud would then need to go to the jury, Black v. Sanders, 46 N.C. (1 Jones) 67 (1853), and summary judgment would therefore be appropriate. If, on the other hand, consideration did pass, the intent of the parties to the transactions becomes an essential element of the creditors’ action. N.C. Gen. Stat. § 39-15 (1976); Aman v. Walker, 165 N.C. 224, 81 S.E. 162 (1914); Moore v. Hinnant, 89 N.C. 455 (1883). Questions of fraudulent intent ordinarily go to the jury on circumstantial evidence, and summary judgment is usually inappropriate. Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). The evidence in the record as to the state of mind of Gerald Kornegay does not compel a conclusion as a matter of law that he [267]*267transferred the property with intent to defraud. Therefore, unless the plaintiffs’ evidence established as a matter of law that no consideration passed, the trial court erred in granting summary judgment to FCBT and SDI.

V

What constitutes valuable consideration under G.S. § 39-15 (1976) was explained by our Supreme Court in North Carolina Nat'l Bank v. Evans, 296 N.C. 374, 250 S.E. 2d 231 (1979). The Evans court clearly distinguished consideration under the law of fraudulent conveyances from that under the law of contracts as follows:

This crucial distinction was explained by Chief Justice Ruffin in Fullenwider v. Roberts, 20 N.C. 420 (1839). Mere inadequacy of price is not sufficient to set aside a contract as between two parties for the reason that ‘if one will, without imposition, distress or undue advantage, make a bad bargain with his eyes open, he must stand to it. His agreement is sufficient, because his interests alone are affected by it.’ Id. However, different policy considerations come into play when the transaction involves the interests of a creditor who is not a party to the transaction. As against such creditors ‘the price must be sufficient in itself to sustain the deed, without the aid of their acceptance, for no such acceptance exists.’ Id. Since the creditor has no control over the amount of consideration which his debtor will accept in relinquishing assets, the law requires that the debtor receive ‘a fair and reasonable price, according to the common mode of dealing between buyers and sellers.’ Id. This does not mean that the debtor ‘should [be] paid every dollar the land was worth, but he should [be] paid a reasonably fair price — such as would indicate fair dealing, and not be suggestive of fraud.’ Austin v. Staten, 126 N.C. 783, 36 S.E. 338 (1900). Such a requirement prevents a debtor from placing his assets beyond the reach of his creditors by transfers to friendly parties for nominal considerations.

296 N.C. at 378-79, 250 S.E. 2d at 234. The resolution of the issue on appeal depends on the strength of the evidence that Gerald and Connie Kornegay did not receive a “fair and reasonable” price for the tracts in question.

[268]*268VI

The trial court had before it evidence that Gerald Kornegay’s parents had loaned him approximately $73,000 and that the transfer of the real property satisfied that debt. The parents, Cecil and Jean Kornegay, claimed to take title in exchange for forgiveness of this existing debt. The majority of jurisdictions accept such satisfaction of debt as consideration if the amount forgiven is fairly equivalent to the value of the property. 37 Am. Jur. 2d Fraudulent Conveyances § 21, at 712 (1968). North Carolina has recognized a conveyance for the sole purpose of discharging an honest debt as outside the statutory prohibition against fraudulent conveyances. Hafner v. Irwin, 23 N.C. (1 Ired.) 490 (1841). In Wurlitzer Distributing Corp. v. Schofield, 44 N.C. App. 520, 261 S.E. 2d 688 (1980), this Court considered the application of Hafner, and concluded that Hafner controlled when it had been established that the existing debts were valid. The creditors have not shown that the existing debt was invalid as a matter of law; the kind of “after the fact” invention found in Wurlitzer is not conclusively apparent on this record. The creditors emphasize the absence of revenue stamps on the deeds as proof of no real consideration; however, under current law this is only evidence of lack of consideration, not conclusive proof. See N.C.

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Bluebook (online)
318 S.E.2d 895, 70 N.C. App. 264, 1984 N.C. App. LEXIS 3636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-douglass-v-kornegay-ncctapp-1984.