Bohannon v. Trotman , 214 N.C. 706 ( 1939 )

OlaRKSON, J.

The following exception and assignment of error made by defendant Wachovia Bank & Trust Company, executor and trustee of the estate of E. M. Bohannon, cannot be sustained: “(1) That the court overruled its objection to the hearing of the case at the October Term since no answer had been filed by Ernest E. Bohannon, Sr., and the time for answering had not expired, to which this defendant excepted. . . . At the time of the hearing, Ernest E. Bohannon, Sr., had not filed an answer and that thirty days had not elapsed since service upon him of the summons and complaint.” In its brief it states: “The statutory time for answering, however, has now expired, and it may be admitted that the record in the clerk’s office does not show either an answer or demurrer filed by Ernest E. Bohannon, Sr.”

On the record, we find that “Upon proper evidence, the clerk of the Superior Court of Eorsyth County found: 'That the defendant Ernest E. Bohannon, Sr., has been committed as an inebriate, and that, although there has been no order depriving him of his legal status, except an order of commitment, it is proper that he be represented by a guardian ad litem in this proceeding in addition to defending himself personally, if he desires to do so.’ Consequently, a guardian ad litem was appointed for him, and this guardian filed an answer on his behalf. . . . The matter also was taken up with him personally, and he expressly waived the right to file an answer, and stated that he was in favor of the settlement, this consent and waiver being verified before a notary public.” The right to file an answer is a privilege which may be waived.

In Beebe v. Beebe Co., 46 Atl., 168 (170-171), the defendant waived the time for filing answer and a judgment was taken before the statutory time had expired. In approving this procedure, the Court said: “Section 105 of the Practice Act allows the defendant 30 days after the filing of the declaration within which- to plead thereto. But this provision was enacted in the interest of the defendant, and he may waive it, and put himself in default at any time; and, when so in default, either by his own acknowledgment of the justness of the plaintiff’s claim, and waiver of time to plead, a judgment by default for a want of a plea may be entered against Mm. Hoguet v. Wallace, 28 N. J. Law, 524. Proper practice requires that the admission by the defendant of the justice of the plaintiff’s claim, and his waiver of time to plead to the latter’s declaration, should be in writing, and filed in the clerk’s office.”

The following exception and assignment of error made by defendant Wachovia Bank & Trust Company, executor and trustee of the estate of F. M. Bohannon, cannot be sustained: “(2) In that the court found as a fact that the settlement under the terms of the contract attached to the complaint marked Exhibit ‘G-’ is for the best interests of all the parties.” This is the main controversy in this case. We think there was sufficient competent evidence to support the findings of fact, and the conclusions of law thereon are fully sustained by the authorities in this jurisdiction.

The settlement was based mainly on a decision of this Court, Bohannon v. Trust Co., 210 N. C., 679, where it was held: “Plaintiff alleged that his grandfather had formed a fixed intention to settle a large part of his estate on plaintiff, that defendants conspired together to deprive plaintiff of his share of the estate, and by false and fraudulent representations induced his grandfather to abandon his intention to leave plaintiff a large part of his property, and that but for such false and fraudulent representations plaintiff’s grandfather would have carried out his previous intention and would have devised for the benefit of plaintiff a large part of the estate. Held: The facts alleged are sufficient to constitute a cause of action against defendants, the cause being analogous to the right of action for wrongful interference with contractual rights by a third person.”

The amended complaint stated a cause of action against the beneficiaries of the F. M. Bohannon estate.

It is contended by plaintiff: “(1) If Maude Bohannon Trotman and Laura Webb Bohannon (the two original defendants) had obtained the property themselves as devisees under the F. M. Bohannon will, they would have been declared constructive trustees for the benefit of the plaintiff. (2) If the property in the hands of the wrongdoers would thus have been subject to a constructive trust, it is likewise subject to such a trust in the hands of the donees of said property. Dealing with these propositions in the order stated: (1) If the original defendants had themselves, as devisees, obtained property which, but for their wrong, would have gone to the plaintiff, they would have been declared constructively trustees under Sumner v. Staton, 151 N. C., 198.” Teachey v. Gurley, ante, 288; Chambers v. Byers, ante, 373; 2 Pomeroy’s Equity Jurisprudence (3rd Ed.), sections 912 and 913. (2) “Inasmuch as the beneficiaries under the will of F. M. Bohannon are donees, the property in tiieir hands is subject to the same constructive trusts as if it were in the hands of the original wrongdoers.” 3 Bogart, Trusts & Trustees, see. 473. We think these contentions of plaintiff correct.

In Ruhe v. Ruhe, 77 Atl. P., 800 (Court of Appeals, Md.), it is thus stated: “It is also settled that property obtained by one through the fraudulent practices of a third person will be held under a constructive trust for the person defrauded, though the person who received the benefit is innocent of collusion. If such person accepts the property, he adopts the means by which it was procured, or, as Lord Chief Justice Wilmot said: ‘Let the hand receiving the gift be ever so chaste; yet if it comes through a polluted channel, the obligation of restitution will follow it.’ 1 Perry on Trusts, sec. 211. While the allegations of this bill may not be sufficient to create a resulting trust, as urged by the appellee, there can be no doubt that they are sufficiently certain and definite to gratify the requirements of law as to the creation of a valid trust that will be enforced by a court of equity.” Saar v. Weeks, 178 Pac., 819; Bank v. Crowder, 194 N. C., 312.

There was plenary evidence to support the facts found by the court below. The conclusions of law are fully sustained by the authorities in this and other courts in the exercise of its equitable jurisdiction approving family settlements made like the present.

In Price v. Price, 133 N. C., 494 (504), it is written: “The principles by which courts of equity are governed in sustaining and enforcing such contracts as to the one set out in this record are well settled and strongly stated by Lord Hardwicke in the case of Stapilton v. Stapilton, 1 Atl., 2 (2 White & Tudor’s L. C., 1675, star p. 824). In speaking of a contract made for the purpose of settling a family controversy he says: ‘It was to save the honor of the father and his family, and was a reasonable agreement; and, therefore, if it is possible for a court of equity to decree a performance of it, it ought to be done. . . . And, considering the consequence of setting aside this agreement, a court of equity will be glad to lay hold of any just ground to carry it into execution, and to establish the peace of a family.’ ” Reynolds v. Reynolds, 208 N. C., 578 (622).

In Armstrong v. Polakavetz, 191 N. C., 731 (734-5), we find: “In 5 R. C. L., p. 878, it is said: ‘It is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims; and the nature or extent of the rights of each should not be nicely scrutinized. Courts should, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights of parties; the consideration of each agreement is not only valuable, but highly meritorious. They are encouraged because they promote peace, and when there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement. Courts of equity, like courts of law, do not discountenance compromises of doubtful claims, much less of suits actually instituted for litigating sucb claims. Sucb rule would tend to defeat and discourage all compromise. Equity favors amicable adjustments, and will not disturb tbem unless its jurisdiction is invoked in favor of one without knowledge at tbe time by satisfactory evidence of deception, fraud or mistake.’ Tbis bas always been tbe policy of tbis State borne out by numerous authorities. Sutton v. Robeson, 31 N. C., 380; Williams v. Alexander, 39 N. C., 207; Mayo v. Gardner, 49 N. C., 359; Barnawell v. Threadgill, 56 N. C., 58; York v. Westall, 143 N. C., 276; Peyton v. Shoe Co., 167 N. C., 280. In Beck v. Wilkins-Ricks Co., 186 N. C., 214, it is said: 'In Mayo v. Gardner, 49 N. C., 359, tbis Court, by Chief Justice Nash, says: “In re Lucy, 21 Eng. Law and Eq. Rep., 199, it was decided that, to sustain a compromise, it was sufficient if tbe parties thought, at tbe time of entering into it, that there was a bona fide (or real) question between tbem, though in fact there was no sucb question.” Tbe law favors tbe settlement of disputes, as was said in that case. It is stated in 9 Cyc., 345, that “the compromise of a disputed claim may uphold a promise, although tbe demand was unfounded,” citing numerous cases in tbe notes to sustain tbe text.’ ” Trust Co. v. Nicholson, 162 N. C., 257.

In Tise v. Hicks, 191 N. C., 609 (613-614), we find: “Family settlements, sucb as that made by these brothers and sisters, when fairly made, and when they do not prejudice tbe rights of creditors, are favorites of tbe law. They are made by members of a family, after tbe death of tbe father or mother, when tbe ties of family affection are strong and sacred, and before they are weakened by separation of brother and sisters, which is inevitable. They are made in recognition of facts and circumstances known, often, only to those who have lived in the sacred family circle, and which a just family pride would not expose to those who neither understand nor appreciate them. They proceed from a desire on the part of all who participate in them to adjust property rights, not upon strict legal principles, however just, but upon such terms as will prevent possible family dissensions, and will tend to strengthen the ties of family affection. The law ought to, and does respect such settlements; it does not require that they shall be made in accord with strict rules of law; nor will they be set aside because of objections based upon mere technicalities. Judge Gaston, speaking of an agreement similar to that involved in this action, says, in Bailey v. Wilson, 21 N. C., 182, ‘The agreement was confessedly entered into for the purpose of quieting disputes between the children of the same father, in relation to the disposition of his property;, it is apparently equal; it is not denied to be fair, and was deliberately assented to as a proper and just family arrangement. Such arrangements are upheld by considerations affecting the interest of all parties, often far more weighty than any consideration simply pecuniary.’ 11 R. C. L., 29, sec. 15; 18 C. J., 891, sec. 159; Moore v. Gregory (Va.), 131 S. E., 692.” 65 C. J., pp. 683-4; 69 C. J., at p. 1274; In re Reynolds, 206 N. C., 276; Reynolds v. Reynolds, 208 N. C., 254; Reynolds v. Reynolds, 208 N. C., 578 (620-624); Bank v. Alexander, 188 N. C., 667 (671); Spencer v. McGleneghan, 202 N. C., 662 (671); Raleigh v. Trustees, 206 N. C., 485; Martin v. Comrs. of Wake, 208 N. C., 354; Trust Co. v. Wade, 211 N. C., 27; Gutter v. Trust Co., 213 N. C., 686; 2 Pomeroy Equity (4th. Ed.), sec. 850.

In tbe brief of defendants Mrs. Maude Bohannon Trotman, J. C. Trotman and John EranMin Trotman, and J. 0. Trotman as one of the co-guardians of Laura Elizabeth Trotman, Marion Jackson Trotman and Mary Camille Trotman, respectively, is the following: “Counsel for the above named defendants, therefore, contend that the judgment of the Superior Court should be affirmed. In conclusion, they hope that they will be pardoned for stating to the court that it is the very sincere wish of the members of the Trotman family that the settlement be finally approved by the Supreme Court.”

In the brief of Calvin Graves, Jr., guardian ad litem for Ernest E. Bohannon, Sr., is the following: “Calvin Graves, Jr., guardian ad litem for Ernest E. Bohannon, Sr., adopts the propositions of law set forth in the brief of Ernest E. Bohannon, Jr., plaintiff, and also adopts the argument in the brief of counsel for Mrs. Maude Bohannon Trotman, J. C. Trotman and John Eranklin Trotman, and J. 0. Trotman as one of the co-guardians of Laura Elizabeth Trotman, Marion Jackson Trot-man and Mary Camille Trotman. Counsel for the above named defendant, therefore, respectfully argues and contends that the judgment of the Superior Court should be affirmed.”

The case is a moving picture of distressing circumstances which we need not emphasize. The father and mother of the minor, trust beneficiaries, agree to the family settlement and think it is for the best interest of all parties that the litigation which is with their blood kin be compromised and adjusted and the family differences be«ended forever. That the property rights affected by the adjustment is nothing in comparison to the benefit of ending a serious family feud, which might continue on and on through the generations to come. Erom the exigencies that are continually arising in the human family, from very necessity a power must exist somewhere to grant relief in such cases of dire need. Under our system of jurisprudence it is vested in the courts of equity. The court below, after a full hearing, has entered a decree approving this settlement.

Erom a careful review of the record and briefs, we think the judgment of the court below must be

Affirmed.