Ferrell v. . Thompson , 107 N.C. 420 ( 1890 )

It is alleged in the complaint, and admitted in the answer, that at the November Term, 1862, of the late Court of Pleas and Quarter Sessions of Nash County, an order was duly made, appointing the defendant commissioner to sell the slaves named in the complaint, for division among the children of John Matthews, deceased, the owner of said slaves; that in pursuance of said order, the said commissioner sold said slaves on 24 January, 1863, for the prices respectively named in the complaint, and made his report of the sale at the February term, 1863, of said court, at which term said sale was duly confirmed, and that there were nine children of John Matthews, of whom the feme plaintiff, Lydia Ferrell, was one.

It is further alleged in the complaint, but denied in the answer, that, applying the scale of depreciation of Confederate money, the feme plaintiff, Lydia Ferrell, is entitled to $219.85 in good money, with interest from 24 January, 1863, and that the defendant has refused and failed to pay the same or any part of the money due as aforesaid, and the plaintiffs pray judgment therefor.

The defendant denies that the feme plaintiff is entitled to the money named, and says "that the share of the feme plaintiff in the (422) slaves which came to her by her father's death, and mentioned in the complaint, vested, by virtue of her marriage, in her husband, P. L. Ferrell, and, upon settlement, defendant paid to him, the said Ferrell, the full amount due from sale of said slaves."

The defendant further relies upon the ten-year statute of limitations and of presumptions.

The male and feme plaintiffs intermarried in 1855. This action was commenced on 14 July, 1888. It has often been held, and is well settled, that the appellate jurisdiction of this Court in an action properly constituted in a court of competent jurisdiction, so far as the pleadings, verdict, and judgment are concerned, will be confined to such exceptions as are shown in the record to have been taken in the court below. Phipps v. Pierce, 94 N.C. 514, and cases there cited.

The evidence and his Honor's charge are sent up, but the record presents no exceptions to either, and we need not consider whether objections, if properly taken below, might be successfully maintained here.

Whether his Honor was correct in charging the jury that the statute of limitations did not bar Mrs. Ferrell because she is, and has all the time been, a married woman, or should have instructed them that the statute of limitations had no application, but that it was governed by the statute of presumptions, in which there is no saving of the rights of persons under disabilities, as held in Headen v. Womack, 88 N.C. 468, and Houck v. Adams, 98 N.C. 519, and cases there cited, we need not consider; nor are we called upon to review his Honor's charge as to whether the statute of limitations began to run against the male plaintiff, though the uncontroverted evidence, both for the plaintiff and defendant, upon that question, is that the defendant refused (427) to pay prior to 1870; nor does it appear whether the instructions asked by the defendant were given or refused, nor is any exception presented in relation thereto.

The only exceptions that appear to have been taken are:

1. Because the verdict was against the weight of testimony.

2. For newly discovered evidence.

3. To the judgment in favor of the feme plaintiff instead of P. L. Ferrell, the husband.

It has been too often held to need repetition that the first and second address themselves solely to the discretion of the judge below and are not reviewable by us, and the only question presented by the record for our consideration is, Was the judgment rendered erroneous?

The counsel for the plaintiffs says this objection cannot avail the defendant, because, "after the judgment had been rendered, and, indeed, after the expiration of the term, a notice was served on the plaintiffs of an appeal by the defendant on account of the erroneous rulings by the judge on motion for a new trial." He insists that this notice, which appears in the record, "shows that, if any exception was taken during the trial because the judgment was rendered in favor of the feme plaintiff, such exception was abandoned, and that point is not involved in this appeal," and the "record," and not the "case," controls. The answer to this objection is, that the "notice of appeal," though in the record, is no more a part of it than the "case" on appeal, which, having been settled by his Honor on disagreement of counsel, is conclusive unless in conflict with the record proper; in fact, "the concise statement of the case required," and not the notice, must show the exceptions and grounds of appeal.

(428) Upon the verdict, was the judgment properly rendered in favor of the feme plaintiff? We need not consider whether she was a necessary party to the action, or whether, as the property jure mariti vested in the husband, he should have sued alone. Spiers v. Alexander,8 N.C. 67. But we are of opinion that the judgment in favor of thefeme plaintiff was erroneous. Whatever may be the effect of his abandonment of her, or, as he says, of her abandonment of him, the interest of the feme plaintiff in the slaves had vested absolutely in the husband before the separation, and was subject to his debts and liabilities.Pettijohn v. Beasley, 15 N.C. 512, and cases cited. No act of the wife was necessary to vest the slaves, or her distributive share in them, in her husband, nor could she in any manner have prevented it. Whether, if the husband had died before the payment of the distributive share, it would have gone to his personal representatives or survived to the wife, we need not consider, for the husband is still living, and, though he has lived in another State for many years, and married another woman, joins in this action without objection. Mardree v. Mardree, 31 N.C. 295.

But it is contended by counsel for the plaintiffs that the male plaintiff waived his marital right in favor of the feme plaintiff when he refused to receive his wife's part of the proceeds of the sale of slaves, and said it belonged to her and he wanted her to have it.

The counsel for the plaintiff says: "Suppose that the title to an undivided one-ninth interest in the slaves did vest . . . in the said P. L. Ferrell (the male plaintiff), there is no reason why he may not have waived his right or have conveyed such interest in the slaves to his wife. . . . Whenever a contract would be good at law if made by a husband with trustees for his wife, that contract will be sustained in equity when made by the husband and wife without the intervention of the trustees. The husband, in our case, plainly considered the (429) wife meritorious, and there may have been not only a meritorious, but a valuable, consideration for his contract with her. At any rate, the judge could not take upon himself to say that there was no consideration for such a contract. The defendant, by his answer, raises no such issue nor asks for the jury to pass upon such an issue.Taylor v. Eatman, 92 N.C. 605; Woodruff v. Bowles, 104 N.C. 207."

Conceding that this would be so if there were no creditors of the husband whose rights would be affected, the complainant alleges no such claim for the feme plaintiff, and the answer distinctly denies any interest in the wife — avers the ownership of the husband, and that he has been paid in settlement, and the evidence shows, and this is not controverted, that the defendant refused to pay to the wife unless the husband would pay defendant's claim against him. And, besides, the male plaintiff testifies that he "never assigned or released to any one any part of said proceeds of sale," and joins the feme plaintiff in praying judgment therefor, and the cases cited by counsel have no application to this case.

By the law, as it then was, the title to the wife's interest in the slaves vested absolutely in the husband, became liable for the payment of his debts, and there is no allegation in the complaint, nor is there any evidence that the defendant agreed to hold in trust for the wife. On the contrary, the answer denies any interest in the wife, and the evidence is that he refused to pay to the husband or his wife unless the male plaintiff would pay defendant's claim, and the judgment is erroneous.

Error.

Cited: Benton v. R. R., 122 N.C. 1010; Fowler v. McLaughlin,131 N.C. 210.

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