Battle v. Mayo

AveRY, J. (after stating the facts). On the argument counsel revived the discussion as to the right of this Court to review findings of fact, made by a referee or Judge, and also questioned the power of the Judge below to modify the report of the referee upon the facts. It is necessary, therefore, to collate, rearrange and reiterate some of the settled rules that define the duties and powers, respectively, of the referee,'the trial judge and the appellate court in disposing of references by consent. This is a mode of trial selected by the parties, who, in agreeing to it, are deemed to have waived their constitutional right of trial by jury. Con., Art. IV, sec. 13. Sections 422 and 423 of The Code are, so far as is material to the decision of the questions before us, the same as sections 246 and 247 of the Code of Civil Procedure (including the provision, that “the report shall have the effect of a special verdict”), and therefore our decisions, running through twenty years, have been constructions of the same language. The referee must state in his report his findings of fact and law separately, and when the Judge, who hears exceptions to the report, makes no special finding of fact, it is presumed that he adopts those of the refereee which are considered prima facie correct. Barcroft v. Roberts, 91 N. C., 363; Green v. Jones, 78 N. C., 265. But in the exercise of his revisor}1- power, the Judge may “ set aside, modify, or confirm, in whole or in part, the — 435 — report of the referee, and the appellate jurisdiction attaches to his rulings in matters of law only.” Vaughan v. Lewellyn, 94 N. C., 472. “ ITis findings of fact, upon appeal to this Court, are conclusive, and his conclusions of law upon them alone are reviewable.” Bancroft v. Roberts, 91 N. C., 363; Green v. Castleberry, 70 N. C., 20; Klutts v. McKenzie, 65 N. C., 102; Armfield v. Brown, 70 N. C., 27; Paterson v. Wadsworth, 89 N. C., 407. One valid objection may be raised to the findings of the referee adopted by the Judge, either directly or by failing to modify them, or to those of the Judge substituted for the referee’s; but it raises in reality only the question of law, whether there is any evidence to support the conclusions of fact. Where no such objection is made, and, in apt time, the findings of the Judge, whether made or adopted, are final and cannot be reviewed in this Court, and if, upon hearing such exception when taken, it appears in the appellate Court that there is any evidence to sustain the finding, it will be “deemed conclusive.” Usry v. Suit, 91 N. C., 406; Reaves v. Davis, 99 N. C., 425. The Supreme Court, under the Constitution of 1868 (Art. IY, sec. 10), had no jurisdiction to try any “issue of fact as distinguished from a question of fact.” Issues of fact were defined by the Court to mean “ such matters of fact as are put in issue by the pleading, and a decision of which would be final and conclude the parties upon the matters in controversy in the issue.” Heilig v. Stokes, 63 N. C., 612. This cause, constituted as it is in this Court, is certainly not one in which the Supreme Court could have decided the issues of fact, before the Constitution of 1868 was ratified, according to the practice as it then existed. Though this is a cause that would have been cognizable in a court of equity then, it presents issues of fact which the parties have elected to try by referee in place of a jury trial, — 436 — and the evidence does not come to this Court in such shape as to require us to review it or even to determine whether, with or without the aid of legislation, the case might have been so presented on appeal as to require us, in the exercise of the jurisdiction conferred by the amendment of 1877, to decide the issues of fact involved. Jones v. Boyd, 80 N. C., 258; Coates v. Wilkes, 92 N. C., 376. Having stated the foregoing general principles applicable to the consideration of trial by referee, we will find that some of the exceptions which appear in the record will fall within the rules laid down, and be disposed of without directly discussing them at any length. The following were all of the exceptions filed by the plaintiff in the Court below: 1. The plaintiff objects to the referee’s finding of fact No. 4, as to the amount of indebtedness still due from Mayo after transferring, or attempting to transfer, all his property. 2. The plaintiff objects to the referee’s sixth finding of fact as being contrary to the evidence. 4. The plaintiff objects to the referee’s finding of fact, and insists that not even the principal money there mentioned constitutes valid enforceable indebtedness in favor of Mrs. Mayo as against the claims of creditors; our objection being mainly this, that he ought to have found that Mrs. Mayo was a party to the agreement which he mentions. 5. The plaintiff objects to the report because the referee did not direct Mrs. Mayo to refund to her husband so much of the money received by him from her as is necessary to satisfy the claims of creditors. Without considering whether his Honor ultimately modified the findings of the referee, covered by the first, second and third exceptions, we will see at a glance that they were all based on the objection that the facts were found against the weight of evidence, and could serve no purpose unless they could have induced the Judge below to set that portion — 437 — of the report aside, and find the facts on the points mentioned for himself, and whether he did or did not make any alteration, his decision is not reviewable. The fifth exception is in form subject to an objection that has frequently been held to be fatal. It is not sufficiently specific — does not point out any conclusion of law stated by the referee in his report, at which the exception is aimed, nor the precise error in the referee’s ruling. Suit v. Suit, 78 N. C., 272. The exception in that case was, “ that the referee ought to have found as a conclusion of law, that the plaintiff recover nothing.” Here the ground is, “ because the referee did not direct Mrs. Mayo to refund to her husband so much of the money received by him from her as is necessary to satisfy the claims of creditors.” The only difference is, that in this case the exception raises objection in general terms to the final disposition of one of several funds in controversy, and there it was to the final conclusion as to the only matter involved in the action. We concur with the Judge in overruling this with the three other exceptions. Currie v. McNeill, 83 N. C., 176; Whitford v. Foy, 71 N. C , 527. Embodied in the judgment of the Court, we find but one exception, which is as follows: “ The plaintiff does not assent to any part of this judgment, unless where it distinctly appears in the same, and he especially objects to the Judge’s finding additional facts to those found by the referee.” The withholding of assent cannot be treated as a specific exception to the whole judgment, just as an exception to a whole charge has been held not sufficient, even where the counsel after the term filed their assignments of error, pointing out the particular objections. Bost v. Bost, 87 N. C., 477. In Green v. Castleberry, supra, Justice Reade, avowing for the Court the purpose to give sections 246 and 247 (C. C. P.) such a construction as would best subserve “ the convenient — 438 — administration of justice,” and to settle the practice, formulated ten rules, governing trials by referee, that clearly “ blazed the way ” and constitute the substratum of the principles already stated ; but, probably because of the fact that the Judges usually adopted the findings of referees, he did not indicate when or how an appellant should enter the exception, that there was no evidence to support a finding of fact made by a Judge revising a referee’s report. Counsel are required to present such objections to the Judge’s rulings as constitute grounds of motion for new trial during the term at which the verdict is rendered, in order to give the Judge an opportunity to set aside the verdict, if convinced that there is error, because he has no power to do so after the end of the term, and exceptions on that ground made after the term are not considered. The objection, that there is no evidence to sustain one of the conclusions of fact stated by a Judge on revising a referee’s report, should be likewise made during the term, when the cause is heard, in order to enable the Judge to. modify his findings, if any error is pointed out, and we will not consider exceptions based upon such alleged errors, filed for the first time within ten days, under Rule 7 of this Court. The plaintiffs, it seems, filed, under Rule 7, twenty-five exceptions, which we find in the record, and which ought to have been printed, instead of the assignment of errors remodeled and .rearranged, that appears in the printed record. As the argument was addressed to the printed exceptions, or what purported to be exceptions, we find greater difficulty in reviewing the points properly presented for our consideration. Disregarding the order observed by the plaintiff, we address ourselves first to the twelfth exception. His Honor, after finding that, though J. M. Mayo occupied his wife’s lands for nine years, and with her knowledge received the rents therefrom, and that there was an express agreement — 439 — on his part to account to her for the rent, which was after-wards set forth in the nine notes for $700 each, declares and adjudges in effect that the notes constitute valid indebtedness on the part of the husband to his wife. It was insisted, that the wife’s power to contract with her husband in reference to the rents of her separate estate was restricted by the provision of sec. 1837 of The Code, that “no husband who, during coverture (the wife not being a free trader, under this chapter), has received, without objection from his wife, the income of her separate estate, shall be liable to account for such receipt, for any greater time than the year next preceding the date of a summons issued against him in an action for such income, or next preceding her death.” It is settled that none of the other sections of chapter 47 of The Code are to be construed as limiting the wife’s power to acquire property, by contracting with her husband or any other person, but only to restrain her from, or protect her in, disposing of property already acquired by her. Kirkman v. Bank of Greensboro, 77 N. C., 394; George v. High, 85 N. C., 99; Dula v. Young, 70 N. C., 450. But section 1837 does contain the restriction, that the liability of the husband for rents received, “ without objection” on the part of the wife, shall be limited. The wife must have “knowledge” in order to enter into any contract, and the fact that there was an express agreement that ultimately assumed the form of notes precludes the possibility of assent, and implies objection on her part to the receipt of the rents, unless upon a promise to account for them. The defendant James M. Mayo, on the 22d of October, 1885, being indebted to his niece, Mary H. Lyon (now the wife of J. 0. Braswell), for her distributive share in the estate of her grandfather, as he supposed, in the sum of $1,500, executed to her on that day a mortgage conveying a tract of land, known as the Herbert tract, and.also certain personal property on said place, to secure the payment of a note for — 440 — $1,500, executed cotemporaneously as evidence of his indebtedness to her. He continued to live on said place and to use the personal property conveyed in the mortgage (some of which was consumed in the use) until about the first of the year 1887, when the Herbert place was sold under a prior-mortgage, and the proceeds were insufficient to satisfy the debt secured by it. . The $118 is the fund realized by a sale of the said personal property in February, 1888, and deposited with A. Braswell to await the decision in the case. His Honor finds that the said mortgage deed was not executed with any intent on the part of Mary H. Lyon (now Mrs. Braswell) that Mayo should remain in possession thereof, and use, enjoy and consume the same, and, therefore, was not fraudulent. The plaintiff’s exception (No. 2) is based on the ground that there was error in the holding that the .mortgage deed, made to secure a pre-existing debt, was not void because the mortgagee did not participate in the fraud. The deed was executed to secure a valid pre-existing debt of $1,500, which is held to be a valuable consideration. A mortgage deed executed (as this was) for a valuable consideration, and with no fraudulent intent on the part of the mortgagee, is valid, though the mortgagor did execute it for the purpose of defrauding his creditors. Savage v. Knight, 92 N. C., 493; Lassiter v. Davis, 64 N. C., 498; Beasley v. Bray, 98 N. C., 266; Means v. Dowd, 128 U. S., 273. This principle is sustained by the reasoning in the cases cited, and disposes of the twentieth exception, relating to same subject. The referee found that J. M. Mayo justly owed his wife, F. L. Mayo, these notes mentioned in his report. His Honor adopted his finding, and allowed her interest on the unpaid notes, We can discover no error in. this, and the exception points out none. Exception 19 is overruled. The Judge finds that when the Ricks & Taylor notes were assigned by J. M. Mayo to his — 441 — wife, he was indebted to her in a large amount upon these notes, as set forth in the judgment, and subsequently he holds that said assignment was not voluntary. Iiis finding of fact was conclusive;. his legal deduction naturally followed from the finding. Therefore, we cannot sustain either exception 18 or 21, because the assignment was not voluntary, if the consideration was a large debt, as found, and if made upon consideration it is valid, and the money collected on the judgment against' R icks <& Taylor should be paid over to W. T. Mayo, trustee, for the benefit of F. L. Mayo. All of the other exceptions filed by counsel, under Rule 7, we think are amenable to the objection that they ask us to review findings of fact which, under the rules already stated, .are conclusive, and we cannot, therefore, sustain any of them. No error. Affirmed.