Bundy v. . Sutton , 209 N.C. 571 ( 1936 )

DEVIN, J., took no part in the consideration or decision of this case. Civil action to set aside conveyances on ground of fraud and collusion, for accounting, and to recover plaintiff's lands.

The facts were fully stated on the prior appeal, reported 207 N.C. 422,177 S.E. 420, to which reference may be had without repeating here.

On the second hearing, upon denial of liability and issues joined, the jury returned the following verdict:

"1. Did the defendants Joe Sutton and Guy Sutton illegally and fraudulently collude and connive together to suppress the bidding at the sale by W. H. Woolard, trustee, on 10 March, 1932, of the land in controversy to the end that they might acquire title thereto at a grossly inadequate price, as alleged? Answer: `Yes.'

"2. If so, did said defendants, as a result of said unlawful agreement and their conduct in connection therewith, in fact acquire title to said property at a grossly inadequate price, as alleged? Answer: `Yes.'

"3. Did the defendants Joe Sutton and Guy Sutton unlawfully agree and conspire together to procure the Greenville Banking and Trust Company to bid on the property at the sale held 10 March, 1932, and afterwards transfer its bid to them upon their assumption of the debt owing by the estate of J. W. Sutton to said bank, including $600 interest charged but disallowed, and secure the same by a lien upon the property, and if so, as the result thereof, did they in fact procure said bank to execute said agreement, as alleged? Answer: `Yes.'

"4. If so, did the said Joe Sutton and Guy Sutton acquire title to said land under said agreement and at a grossly inadequate price? Answer: `Yes.'

"5. Did the defendants Joe Sutton and Guy Sutton wrongfully collude and agree with the Greenville Banking and Trust Company, J. H. Waldrop, and W. H. Woolard, trustee, that said sale should be held and conducted, not in good faith, but for the mere purpose of effecting the transfer of the title to said land to the said Joe Sutton and Guy Sutton at a grossly inadequate price, as alleged? Answer: `Yes.'

"6. Was the defendant H. L. Hodges wrongfully induced by the said Joe Sutton and Guy Sutton to refrain from bidding on said land, and was the bidding on said land thereby chilled or suppressed, as alleged? Answer: `No.'

"7. Was the defendant Nora Patrick wrongfully induced by the said Joe Sutton and Guy Sutton to refrain from bidding on said land, and was the bidding on said land thereby chilled or suppressed, as alleged? Answer: `Yes.'

"8. Was the defendant Virginia-Carolina Chemical Corporation wrongfully induced by the said Joe Sutton and Guy Sutton to refrain from bidding on said land, and was the bidding on said land thereby chilled or suppressed, as alleged? Answer: `Yes.'" (The remaining issues deal with rents and the question of accounting.)

Judgment on the verdict, from which the defendants again appeal, assigning errors. The vital question presently presented is whether the evidence warrants the answers to the 3d 5th, 7th, and 8th issues. A careful perusal of the record leaves us with the impression that it does.

In view of the avowed purpose of Joe and Guy Sutton to obtain possession of their father's lands, the case presented an issue for the jury to determine whether the other defendants, with knowledge of the facts, were also "present, consenting unto the wrong." While three of the claims, one in favor of the chemical corporation, another in favor of H. L. Hodges, and the third in favor of the trust company, were disallowed, in whole or in part, as proper charges against plaintiff's estate while under guardianship, nevertheless under the collusive scheme of the two Suttons, these were to be paid in full or compromised. This circumstance proved to be the undoing of the whole plan, and furnished the nucleus of the evidence upon which the case was properly submitted to the jury.

The plea of estoppel, or that plaintiff's remedy was by motion in the cause, rather than by independent action to vacate the order of confirmation, cannot avail in the face of the allegation and finding of fraud or collusion. Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; McCoyv. Justice, 196 N.C. 553, 146 S.E. 214; Fowler v. Fowler, 190 N.C. 536,130 S.E. 315; Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280.

The remaining exceptions are not of sufficient moment to call for elaboration. They have all been examined. None can be sustained. The verdict and judgment will be upheld.

No error.

DEVIN, J., took no part in the consideration or decision of this case.