McLawhorn v. . Smith

CONNOR, J. At the bearing by the judge presiding at the September Term, 1936, of the Superior Court of Pitt County, of defendants’ motion that plaintiff’s appeal from the judgment of the clerk of said court be dismissed, it was made to appear to the judge, and the judge found, that plaintiff bad failed to cause a transcript of the record in the proceeding to be prepared by the clerk and forwarded to the judge, as required by C. S., 635, and that such failure was due to the laches of the plaintiff. On these findings, it was ordered by the judge that plaintiff’s appeal be and the same was dismissed. the plaintiff did not except to the findings by the judge. She did except, however, to the order dismissing ber *518 appeal from the judgment of the clerk, and on her appeal to this Court assigns same as error. If C. S., 635, is applicable to plaintiff’s appeal from the judgment of the clerk of the Superior Court of Pitt County, there was no error in the order dismissing her appeal. Hicks v. Wooten, 175 N. C., 597, 96 S. E., 107. In that case it was held by this Court that on the finding by the judge that plaintiff, who had appealed from an order of the clerk denying plaintiff’s motion that an execution be issued on a judgment which the plaintiff had recovered against the defendant, had been guilty of laches in failing to have the clerk to prepare and forward to the judge a transcript of the record, as required by C. S., 635, plaintiff’s appeal had been properly dismissed by the judge. In this proceeding, however, issues of law and of fact were raised on the pleadings which had been filed before the clerk. At the hearing of the proceeding by the clerk, the parties waived a trial by jury of the issues of fact, and filed with the clerk a statement on facts agreed. On these facts the clerk rendered a judgment adverse -to the plaintiff. The plaintiff excepted to the judgment, and appealed to the Superior Court in term time. Notice of appeal was given by the plaintiff at the time the judgment was signed. The defendants waived further notice. The clerk thereafter transferred the proceeding to the civil issue docket of the Superior Court of Pitt County, as required by C. S., 634. The proceeding was heard on plaintiff’s appeal from the judgment of the clerk at the next ensuing term of the court. At this hearing no issues of fact were submitted to a jury.- The proceeding was heard on the statement of facts agreed which had been submitted to the clerk. On the facts disclosed by the record, we are of opinion that C. S., 634, and not 635, was applicable to plaintiff’s appeal from the judgment of the clerk of the Superior Court of Pitt County, and that there was error in the order of the judge dismissing plaintiff’s appeal on his finding that plaintiff had failed to perfect her appeal, as required by C. S., 635. Notwithstanding his order dismissing plaintiff’s appeal from the judgment of the clerk of the Superior Court in this proceeding, the judge considered the appeal on its merits (see Hicks v. Wooten, supra), and being of opinion that on the facts agreed the plaintiff is not entitled to dower in the land described in her petition, rendered judgment accordingly. Plaintiff excepted to the judgment and appealed to the Supreme Court, assigning same as error. Her assignment of error cannot be sustained. In Holt v. Lynch, 201 N. C., 404, 160 S. E., 469, it is said: “Dower is a life estate to which a married woman is entitled upon the death of her husband intestate, or in case of her dissent from his will, being one-third in value of all the lands, tenements, and hereditaments, legal and *519 equitable, of which, her husband was beneficially seized in law or in fact at any time during coverture, and which her issue might by possibility inherit as heir to the husband. Chemical Co. v. Walston, 187 N. C., 817, 123 S. E., 196.” In the instant case, plaintiff’s husband was not seized of the land described in her petition at the date of her marriage to him, to wit: 22 December, 1921. By his deed dated 26 January, 1921, he had theretofore conveyed the land to his mother. This deed, although made by plaintiff’s husband with intent to hinder, delay, and defraud his creditors, was good and effective as a conveyance of the land as between him as grantor and his mother as grantee. It was void only as against creditors. Saunders v. Lee, 101 N. C., 3, 7 S. E., 590. When the deed was set aside and declared void by the judgment in the action instituted by the Bank of Ayden against the grantor and the grantee in the deed, the title did not revest in plaintiff’s husband except for the purpose of subjecting the land to sale for the payment of his creditors. The title did not revest in plaintiff’s husband as against his mother, the grantee in the deed dated 26 January, 1921. Plaintiff’s husband was not seized beneficially of the land at any time during her marriage to him, and she is therefore not entitled to dower in the land. “A conveyance of lands by a husband before marriage in fraud of his creditors effectually bars his widow’s dower therein, for the conveyance is binding on him, and she can claim only through his title. This has been held, although such conveyance was subsequently set aside by the husband’s creditors.” 19 C. J., 515, section 162, and cases cited in notes. There is no error in the judgment. It is Affirmed.