Atkinson v. City of Asheville , 205 N.C. 36 ( 1933 )

Civil action by plaintiff, who sues on behalf of himself and other taxpayers, (1) to cancel deed from French Broad Cemetery Company to city of Asheville, purporting to convey 181.22 acres of land for cemetery purposes, on the ground of fraud and collusion between certain officers of the city and officers and stockholders of the cemetery company; and (2) for an accounting for funds thus wrongfully obtained from the city of Asheville. For a fuller statement of the case, see report on former appeal, Atkinsonv. Greene, 197 N.C. 118, 147 S.E. 811.

In the present suit, the city of Asheville has joined with the plaintiff in the prosecution of the action.

At the close of plaintiff's evidence, there was a judgment of nonsuit, from which plaintiff appeals, assigning errors. There is allegation to the effect, and the evidence permits the inference, though it may not compel the conclusion, that the sale in question was without adequate warrant of law; that the price paid was grossly excessive; that at least two of the city officials, to the knowledge of the other defendants, were financially interested in the transaction; and that the interests of the city of Asheville were not properly cared for by those of the defendants charged with such duty.

This evidence, it would seem, is sufficient to carry the case to the jury under the principles announced in Brown v. R. R., 188 N.C. 52,123 S.E. 633, S. v. Williams, 153 N.C. 595, 68 S.E. 900, and differentiates it from Harrison v. New Bern, 193 N.C. 555,137 S.E. 582, cited and relied upon by defendants.

We refrain from a discussion of the evidence, as its credibility is for the jury.

Reversed.