Whitehead v. . Spivey , 103 N.C. 66 ( 1889 )

The plaintiff introduced evidence tending to show that one J. B. Cole was the owner of the locus in quo in 1874. He then introduced a deed from said Cole to M. M. Spivey, dated 16 September, 1874, conveying the locus in quo to him in fee. He then introduced evidence of a judgment in favor of W. A. Whitehead and T. H. McKay, partners, trading as W. A. Whitehead Co., against said M. M. Spivey, for six hundred dollars ($600), rendered in this court on 12 August, 1878, and docketed 19 August, 1878, upon two notes for three hundred dollars ($300) each, dated 13 January, 1876, and due on 1 April, 1876; and also of a judgment in favor of same plaintiffs and against same defendants and one D. M. Lemons for one hundred and five dollars ($105) damages, rendered in this court on 4 August, 1879, and docketed 20 August, 1879. That on each of said judgments an execution, returnable (67) to the Spring Term, 1880, was issued to the sheriff of Moore County, and that under them he caused the homestead and personal property exemptions of M. M. Spivey to be allotted on 16 December, 1879, the homestead being appraised at $766.

A copy of the homestead return is made a part thereof, together with the execution and return of the sheriff thereon.

There was no evidence that said M. M. Spivey excepted to or appealed from the said allotment by the appraisers, or that he took any steps to have the allotment corrected or the deficiency made up.

The plaintiff further showed that executions issued upon said judgment, they being alive and not dormant, returnable to Fall Term, 1882, and that under those executions the sheriff sold the locus in quo without further allotment of homestead, and that said W. A. Whitehead became the purchaser, and the sheriff executed a deed to him, a copy of which is made a part of the complaint herein.

This testimony was admitted by the court, after objection by defendants, for that it had already appeared in evidence of the plaintiff that only a partial homestead of $766 had been allotted under the former executions in the same cases, the court reserving the question as to whether it should not be ruled out at a later stage of the trial.

The defendant then offered in evidence a deed from M. M. Spivey to Mack N. Spivey for the same land, dated 10 June, 1877, and registered in Register's office of Moore County.

The plaintiff attacked said deed for fraud, and offered evidence tending to show that the said deed was made between near relatives, at night, in secret; that it was not registered for three and one-half years; that there was no change of possession; that M. M. Spivey was insolvent; that the price was inadequate, and that, in fact, but a small portion of the price had been paid, and that the deed was dated and signed (68) on Sunday; that said Mack N. Spivey had but little money with which to have purchased said land, and that there was no delivery of the deed by M. M. Spivey to Mack N. Spivey.

The defendant offered evidence tending to show that the land brought a fair price, and the money was paid, and that the date of the deed was a mistake, and that it was executed on Monday, 11 June, 1877, instead of Sunday, and that the defendant had always resided in Moore County.

The court instructed the jury as follows:

"The sheriff's sale and deed under which the plaintiff claims are inoperative and void as against the defendants, because, upon the proofs introduced by plaintiff, it appears that no full homestead has ever been allotted to defendant in execution, but only a partial homestead, valued by the appraisers at $766, both executions having been issued by the plaintiff in the same case, and the plaintiff being the purchaser under both," and directed the jury to find the first issue in favor of the defendant.

To all of which the plaintiff excepted. Verdict for defendant. Motion for new trial on account of error in judge's charge and error in his directing the jury to find in favor of the defendant. Motion denied. Judgment for defendant, from which plaintiff appealed to Supreme Court.

In this Court the appellant suggested, upon affidavit, that since the appeal was taken the homestead has been revalued and is laid off to the defendant; that the land has been resold, and the plaintiff has repurchased it, taking the sheriff's deed therefor, and he asked to be allowed to file the return of the homestead proceedings and have benefit thereof in and of his appeal; if that cannot be allowed, that the case be remanded, to the end he can have benefit of the same in the court below. The motion must be denied. The appellant seeks to help his cause of action and his case in this Court by introducing here, summarily, substantially a new cause of action, one that has arisen since this action began and since this appeal was taken. The defendant has had no opportunity to contest its application or bearing in this action. Indeed the effect of allowing the motion as to this Court might, probably would be, to recast the action in material respects, and allow the plaintiff to assign new grounds of error as to rulings never made in the court below. This could not be thought of for a moment. Nor will the Court remand the case for the purpose mentioned.

In the court below it would appear that the case had been tried upon its merits as presented by the pleadings, and the plaintiff could not avail himself of the new cause of action and one, too, arising after the action began and since the trial therein. The Court would not allow a new and distinct cause of action to be introduced into the action, and especially one that has arisen since the action began. This would be subversive of settled methods of procedure and tend to confusion.

This application is very different from the case of Holley v. Holley,96 N.C. 229. In that case it appeared that the very matter in question by the appeal had been settled and disposed of in another action, and the pendency of the latter action was pleaded. The purpose of remanding the case was to allow the adjudication of the very matter in controversy to be made to appear, and thus prevent the readjudication of the same matter.

Motion denied.