Gilmore Ex Rel. Sloan v. Gilmore

58 N.C. 284 | N.C. | 1859

Elizabeth Gilmore filed a petition for a divorce in the court of equity for Chatham, at Spring Term, 1858, alleging that she was the wife of Greenberry Gilmore, by whom she had four children; that her (285) husband had so mistreated her as to bring on insanity, and that in May, 1857, he left the State clandestinely with a young woman and went to Texas, where he was living in adultery with her; that at May Term, 1858, of Chatham County Court, an inquisition of lunacy was had, by which the petitioner Elizabeth was declared non compos mentis, and the petitioner William J. Sloan was appointed committee of her estate.

The petition further alleges that in April, 1855, William Patteshall, of Chatham County, the father of the petitioner Elizabeth, died, having an estate in which her distributive share is about $1,000; that this estate is still in the hands of the administrators Delilah Patteshall and Zachariah Patteshall; that previous to his absconding, her husband assigned his interest in this distributive share to the defendant Hasten Gilmore for the sum of $700; that petitioner believed this sale was a sham intended to defraud her of her rights, and that no consideration passed from the said Hasten to the said Greenberry, but such sham was intended to enable Hasten Gilmore to transmit said distributive share to Greenberry Gilmore in Texas, to which he was then meditating a flight; that Hasten Gilmore, with this view, has filed a petition in the county court of Chatham, claiming the aforesaid distributive share; that there has been an account rendered, and there is danger that the said Hasten may succeed in his design. The petition then prays a writ of injunction to restrain the administrators from praying over and the said Hasten from receiving petitioner's distributive share in the estate.

The answer sets out that on 3 January, 1856, Greenberry Gilmore assigned his interest in the estate of William Patteshall to the defendant, and for value and without notice of the petitioner's equity; that at August Term, 1857, of Chatham County Court the defendant Hasten Gilmore, as assignee of the interest of Greenberry Gilmore, in right of his wife in the estate of William Patteshall, filed a petition for a settlement and obtained a final decree, in which the distributive share above mentioned was decreed to him, amounting to about $820 (286) after paying costs of suit; that the assignment was in all respectsbona fide and with no intent on the part of the defendant to defraud any one, and the charges of the petition that it was only a pretended sale are entirely without foundation; that Greenberry Gilmore urged him for some time to purchase his interest in the estate, which he finally did, paying him $700 for the same, in money and good notes, and without any notice that his right would be disputed; that the estate was unsettled at the time, and the exact amount of a distributive share could not be ascertained with certainty, but, as it afterwards appeared, the price paid for it, with the interest on the same from the date of the assignment, amounted to within a few dollars of the full amount of a distributive share. The answer further states that in March, 1857, Greenberry Gilmore executed a release to the administrators of William Patteshall of all his interest in right of his wife in the estate of their intestate, stating that he assigned all his said interest to the defendant Hasten Gilmore; that the administrators paid him $125 on this assignment, and in the receipts which they took from him recognized him as being entitled under the assignment to a distributive share of the estate.

Upon the filing of the answer, the injunction which had been previously granted was dissolved. From this order the petitioner appealed to this Court. We have given to the interesting questions presented by the pleadings in this case much consideration, and in doing so we have been aided by very able and elaborate arguments from the counsel on both sides. We have examined with minute attention all the positions taken by the counsel by the plaintiff, and have at last been unable to discover any principle upon which we can give her the relief (287) which she seeks without violating some well-recognized rule of law or equity.

The counsel for the plaintiff takes as the basis of his argument the principle decided by this Court in Arrington v. Yarborough, 54 N.C. 72, that the wife is entitled by a survivorship to her equitable choses in action as against a bona fide assignee for value, if the husband die before the assignee can reduce them into possession. The spirit of this principle, the counsel contends, will extend to and embrace every case of a dissolution of a marriage, whether it be by divorce or death, and whether the divorce be a vinculo matrimonii or mensa et thoro. That may be admitted, and yet it will not, of itself, aid the plaintiff, because the court of equity will not stay the hand of the husband or assignee from reducing the chose in action into possession, if he can, before the death of the husband. To do so would be reviving the exploded doctrine of an equity for a settlement and establishing it in a condition more objectionable than that in which it formerly existed.

The counsel, then, is driven to the necessity of contending further, that by the filing of the plaintiff's bill, a lis was constituted in court, and that during the lis pendens the Court would arrest the chose in action of the wife and keep it in the condition in which the suit found it for the purpose of making it amenable to whatever decree the plaintiff might finally obtain. That argument would perhaps be irresistible if the defendant had not purchased bona fide and for value what the husband had the right to assign, and without any notice of any cause for which the plaintiff had the right to file her bill, and had himself brought suit in a court of competent jurisdiction for the recovery of the claim and obtained a decree therefor just at the time when the bill was served upon him. These facts are stated in the defendant's answer and must be taken as true as the case now stands, which is upon a motion to dissolve the injunction. It cannot be that the lis pendens of the plaintiff can have the effect to arrest a prior lis pendens of the defendant proceed, indeed, in another court, but according to the same (288) "rules of practice prescribed for and used in courts of equity." See Rev. Code, chap. 64, sec. 7. We have seen that the wife cannot enjoin the collection of her choses in action so as to prevent an assignee from collecting them before the death of her husband, and thereby giving her a chance to survive him. Can she do so with a view to get a decree for a divorce, and thereby secure for herself her choses in action in derogation of the rights of the assignee? Very certainly she cannot, unless there is some provision to that effect in the act concerning "Divorce and Alimony," Revised Code, chap. 39. The only section of that act which seems to bear upon the question is the eighth, which provides: "In all cases where there shall be a sufficient cause for a divorce (absolute or from bed and board), with alimony, the wife may exhibit her petition or libel at any time, in case her husband is then removing or is about to remove his effects from the State, if she will likewise state and swear that she doth verily believe that she is entitled to alimony, and that by delaying her suit she will be disappointed of the same by the removal of her husband's property and effects out of the State. And in such cases, any judge may thereupon make an order of sequestration or otherwise, as the purposes of justice may seem to require."

We do not think that this section can admit of a construction to aid the plaintiff. It is the "husband's effects" and the "husband's property," the removal of which is to be restrained by a writ of sequestration. What constitutes the husband's property and effects which are to be thus restrained? Certainly not what he had sold bona fide and for value to one who bought without any notice of the wife's ground of complaint and before it in fact existed. An article of property, the legal title of which had been thus bargained and sold would clearly not come within the meaning of the act as being still the husband's property. Nor, we think, would an equitable chose in action, of which the title had been completely transferred in equity by an assignment and a notice thereof to the trustee. See Adams Eq., 53. Such seems to (289) have been the nature of the transfer in the case now before us. The husband made the assignment to the defendant, of which the administrators of the plaintiff's father had due notice and recognized the defendant as the owner. Under these circumstances, we think the court of equity had no power to restrain the defendant from receiving and the administrator from paying over to him the distributive share in controversy.

As we hold the injunction was rightly dissolved upon the filing of the answer, for the reasons which we have expressed, we deem it unnecessary to consider the objections urged by the defendant's counsel, that the plaintiff being a lunatic is incapable of maintaining a suit for either kind of divorce, because she cannot make the affidavit which is required of her by section 5 of the act. That is a question which arises more properly between the plaintiff and her husband, and may possibly come before us hereafter. The case is now here only on an appeal from an interlocutory order, and as we have said enough to dispose of that it may be premature, and is certainly unnecessary, for us to express an opinion upon any other matter which the cause may present.

PER CURIAM. Decretal order affirmed.

Cited: Daniel v. Hodges, 87 N.C. 101.

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