Bazemore v. . Mountain

(314) The complaint alleged that she was the owner of several tracts of land (describing them), and of personal property (describing it), and that the entire support of the family devolves upon her, and that she has no other source of income than arises from her said lands.

The plaintiff's prayer is for judgment for his debt, and that said judgment be specifically and specially declared a lien and charge upon the separate real and personal estate of Pattie W. Mountain as herein described.

The answer denied every allegation of the complaint.

This is the same case reported in 121 N.C. 59.

Two issues were submitted to the jury:

1. Are the defendants indebted unto the plaintiff, and if so, in what sum? Answer: "Yes; in the sum of $225.58."

2. Is the separate estate of the defendant Pattie W. Mountain, set out and described in the complaint, chargeable with said sum? Answer: "Yes."

The judgment was set aside so far as it affects the real estate of Pattie W. Mountain, defendant, described in complaint.

The plaintiff excepted and appealed.

Judgment was rendered against the male defendant for the debt, $222.58, and it was further adjudged that the separate personal property of feme defendant set out and described in it, to wit, the horses and mules and farming implements owned and used by her in farming her said real estate, and which were so owned and used at time this action begun, is liable to payment of above debt, to extent necessary to pay same and costs of action, subject to personal property exemption of said feme defendant, and that ven. ex. issue from this Court commanding sheriff of Bertie County, after setting apart said exemption, should same be demanded, to sell said personal estate, or so much as may be necessary, and apply proceeds to payment of said debt and costs.

The defendants excepted on the ground that the personal property (315) was insufficiently described, and also appealed. DEFENDANTS' APPEAL. We consider first the defendants' appeal, for the reason that it is much fuller than the record in the plaintiff's appeal — containing the evidence and charge of the court, which is not set out in the transcript of the plaintiff's appeal.

This case was here at Fall Term, 1897, upon a judgment of nonsuit, and appeal by the plaintiff — reported in 121 N.C. 59. In that case, under the repeated rulings of this Court, we were compelled to take every fact which plaintiff's evidence tended to prove; as proved; and under this rule of construction, we set aside the judgment of nonsuit, and awarded the plaintiff a new trial. In doing this, in that appeal, we undertook to lay down the rules of law governing the case. And upon a careful examination of the record of the trial presented upon this appeal, we fail to see any substantial error. It is true that there is an exception to that part of the judge's charge. "That if the supplies were furnished on the faith of the husband's promise that he and his wife would give a mortgage on her separate estate, and he had authority from his wife to make such a contract, and the supplies were to farm the wife's property, on the rents of which she was dependent for support, the jury will find the issue for the plaintiff, Yes."

If the first part of this paragraph had stood alone, "That if the supplies were furnished on the faith of the husband's promise that he and his wife would give a mortgage on the separate estate" of the wife, we think the charge would have been obnoxious to the (316) exception of the defendant; but, when taken in connection with the balance of the paragraph, we do not think that it is.

So far as we are able to see, the court was authorized by the opinion of the Court in this case when here before, to give the instructions it did. Indeed, it seems to us that the case was fairly tried under the rules laid down by the Court on the former appeal.

The exceptions to the judgment, on account of a want of description of the defendant's personal property can not be sustained. This property is described in the complaint as the feme defendant's "mules and horses and farming implements, all of which she uses in the cultivation of her said land for the use of herself, and the support of her said family." It is true that this is not a very specific description, but we think sufficient. Indeed, we do not see how it could have been much more specific. It can not be contended that the plaintiff should have given a description of every horse or mule, or every piece of farming implement.

And as we find no ground upon which the defendants' exceptions to the evidence can be sustained, the judgment of the court below must be affirmed.

PLAINTIFF'S APPEAL IN SAME CASE.