Brinson v. Kirby

110 S.E.2d 482 (1959)

251 N.C. 73

Vertle Mercer BRINSON v. Jessie KIRBY t/a Warsaw Feed Mills, Ralph Miller, Sheriff of Duplin County, and Bobbie Brinson.

No. 166.

Supreme Court of North Carolina.

October 14, 1959.

Jones, Reed & Griffin, Kinston, for plaintiff appellant.

H. E. Phillips, Kenansville, for defendant appellee.

RODMAN, Justice.

The owner of property may bring an independent action to prevent the sale of his property under execution issuing on a judgment to which he is not a party and for which he is not responsible. Mica Industries, Inc. v. Penland, 249 N.C. 602, 107 S.E.2d 120.

Appellee predicates his right to sell the crops on the theory that they were produced on land owned by the judgment debtor and plaintiff as tenants by the entirety, and as the husband was entitled to the usufruct of the land, the crops were his. The conclusion would not seem necessarily to follow the premise, but the case was apparently tried on that theory.

*484 Plaintiff offered evidence sufficient to establish that she was, in April 1940, sole seized of the land on which the crops were produced. She put in evidence a deed from her and her husband to R. W. Craft. This deed, dated 27 April 1940, was filed for record at 5:00 p. m. on 8 May 1940. It recites: "* * * in consideration of Agreements and Fifty Dollars * * *" as the basis for the conveyance. This deed was acknowledged before Gordon S. Muldrow, a justice of the peace, who took plaintiff's private examination but made no finding that it was not unreasonable or injurious to the feme grantor. Plaintiff then offered a deed from R. W. Craft to "Bobbie Monroe Brinson and Vertie Mercer Brinson (his wife)." This deed, dated 30 April 1940, reciting "* * * in consideration of Agreements and Fifty Dollars * * *" was filed for record at 5:30 p. m. on 8 May 1940. It was also acknowledged before Gordon S. Muldrow, justice of the peace. It contained no finding that the conveyance was not unreasonable or injurious to the feme grantee, plaintiff in this action.

If plaintiff's property was conveyed to Craft and by him conveyed to plaintiff and her husband only to divest plaintiff of her separate estate and fix title in the husband and wife as tenants by the entirety pursuant to the agreement alleged in the complaint, the deeds so executed were void since they contained no finding as required by G.S. § 52-12. The statutory provision cannot be defeated by mere circuitous route. Pilkington v. West, 246 N.C. 575, 99 S.E.2d 798; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624; Garner v. Horner, 191 N.C. 539, 132 S.E. 290; Davis v. Bass, 188 N.C. 200, 124 S.E. 566.

Plaintiff sought to establish by testimony of defendant Bobbie Brinson the agreement with Craft as alleged in the complaint. On objection of defendant Kirby this evidence was excluded. It was proper for plaintiff to prove the alleged agreement. It was error to exclude the evidence. It was not necessary to specifically allege, as defendant contends, that the conveyance to Craft was not based on a valuable consideration. The allegation with respect to the agreement negatives any idea that he purchased for value for his own benefit. The evidence should have been admitted, and with the evidence before the jury the court could not have given a peremptory instruction, to which plaintiff appellant likewise excepts.

New trial.

HIGGINS, J., not sitting.