First National Bank of Waynesville v. Haywood Furniture Co.

Connoe, J. The appeals by the defendants in the above-entitled actions, when called for hearing in this Court, were consolidated by consent, both for argument by counsel, and for consideration by the Court. Accordingly, the two appeals were argued and have been considered as if there were only one appeal by defendants from a judgment of the Superior Court of Haywood County, in favor of the plaintiffs and against the defendants. The questions involved in both appeals are practically the same. Assignments of error in one appeal which do not appear in the other are not vital, and even if sustained would not entitle defendants to a reversal of the judgment or to a new trial. Defendants’ contention presented by their exception to the refusal of the trial court to sustain their demurrer ore tenus to the complaint in one of said actions, for that the facts stated therein do not constitute a cause of action, cannot be sustained. The facts alleged in the complaint in each action are sufficient to constitute a cause of action. It is well settled that a corporation cannot sell or in any way alien its property to the prejudice of its creditors, so as to hinder, delay ox defraud them in the collection of debts owing by the corporation; and in general, whenever a conveyance is made by a corporation under such circumstances as would characterize it as a fraud upon creditors if made by an individual, it will be set aside in equity, at the suit of such creditors, or other appropriate relief will be accorded them. On this principle, it has been held that a sale by a corporation to another corporation, in consideration of the latter delivering a specified amount of its stock to the individual shareholders of the selling corporation, *376 and guaranteeing the payment of tbe debts of the selling corporation, is prima facie fraudulent as to creditors of the selling corporation. McIver v. Hardware Co., 144 N. C., 478, 57 S. E., 169. This principle is applicable in the instant cases where it is alleged in the complaints and shown by all the evidence at the trial of both actions that the conveyances were made upon the agreement by the Robbins Furniture Company to issue its stock to the creditors of the "Waynesville Furniture Company and of the Haywood Furniture Company, respectively, who should accept said stock in settlement of their claims. The conveyances by the deeds dated 28 June, 1928, were null and void as to such creditors who did not consent thereto, who did not subsequently ratify the same or who are not estopped by their conduct from asserting that said conveyances are void as to them. It is not contended by the defendants in the above-entitled actions that the plaintiffs therein, who were creditors of the Waynesville Furniture Company and of the Haywood Furniture Company, respectively, at the date of the conveyances, consented to said conveyances. The jury found at the trial of both actions that plaintiffs did not ratify the conveyances. ■ In the action entitled, “First National Bank et al. v. Waynesville Furniture Company et al," the jury further found that plaintiffs in said action were not estopped by their conduct after the conveyance from asserting their claims against the defendants. The defendants contend that there was error in the trial of the action entitled, “Citizens Bank & Trust Co. et al. v. Haywood Furniture Company et al,” in that the court refused to submit the issue tendered by defendants, involving their contention that plaintiffs in said action are estopped by their conduct from maintaining said action. After a careful consideration of all the evidence offered by defendants at said trial, we are of the opinion that there was no evidence from which the jury could have answered this issue in the affirmative. There was no evidence tending to show that plaintiffs in said action made any representations prior to and at the date of the delivery of the deed executed by the Haywood Furniture Company to the Robbins Furniture Company, with respect to the conveyance by said deed of the property described therein; or that said plaintiffs, or either of them, received any benefit resulting from the execution of said deed; or that said plaintiffs by their conduct subsequent to the execution of said deed, gave the defendants any reasonable grounds to believe that said plaintiffs or either of them would not assert their rights as creditors of the Haywood Furniture Company. While, ordinarily, the trial court should submit to the jury all the issues of fact raised by the pleadings, where, as in the instant case, there was no evidence tending to support an affirmative answer to an issue, *377 tbe refusal of tbe court to submit sucb issue, altbougb duly tendered by tbe party wbo bas tbe burden of tbe issue, will not be beld for reversible error, on tbe appeal of sucb party. A new trial will be granted only where tbe court bas refused to submit an issue raised by tbe pleadings, and wben there was evidence tending to support tbe contention of tbe party wbo bas excepted to sucb refusal. We find no error in tbe trial of either of tbe above-entitled actions. Tbe judgments are affirmed. No error.