189 S.E. 507 | N.C. | 1937
Civil action for maintenance and support under C. S., 1667, and for counsel fees, also to sequester certain property alleged to have been conveyed to feme defendant with intent to defraud plaintiff of her marital rights.
The gravamen of plaintiff's complaint is, that she and Heyman Hagedorn were married 24 January, 1912; that defendant has separated himself from plaintiff and has failed to provide her and the child of their marriage with necessary subsistence according to his means and condition in life, and that he has been guilty of misconduct constituting causes for divorce; wherefore, plaintiff brings this action to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.
Plaintiff further alleges that in 1931 Heyman Hagedorn purchased two valuable tracts of land in Greensboro and placed title thereto in the name of his mother, Lula Hagedorn, with the ultimate intent of defrauding plaintiff of her marital rights.
The material allegations of the complaint were denied by Heyman Hagedorn.
The defendant Lula Hagedorn, answering the complaint, admitted that "Heyman Hagedorn caused deed to be made to this defendant . . . for the purpose of securing the replacement of moneys she had loaned her son." Thefeme defendant thereupon set up a cross action for $13,061, which amount, she asserted, was secured by the conveyance of the property in question and evidenced by notes held by her. It was also in evidence that she had paid taxes on said property to the amount of $677.96, and likewise held her son's note to cover this item.
The jury returned the following verdict:
"1. Were the plaintiff, Mrs. Frances Hagedorn, and defendant, Heyman Hagedorn, lawfully married? A. `Yes.'
"2. Did the defendant Heyman Hagedorn commit adultery with Aileen Bennett, as alleged in the complaint? A. `Yes.'
"3. If so, did the plaintiff Mrs. Frances Hagedorn condone the acts of adultery? A. `No.'
"4. Did the defendant Heyman Hagedorn offer such indignities to the person of the plaintiff as to render her condition intolerable and her life burdensome? A. `Yes.'
"5. If so, did the plaintiff Mrs. Frances Hagedorn forgive and condone the acts of the defendant Heyman Hagedorn? A. `No.'
"6. Did the defendant separate himself from his wife and fail to provide her with the necessary subsistence according to his means and condition in life? A. `Yes.' *177
"7. What amount, if any, is the defendant Mrs. Lula Hagedorn entitled to recover of the defendant Heyman Hagedorn? A. `$677.96.'"
Judgment on the verdict, from which the defendants appeal, assigning errors.
In the companion case of Hagedorn v. Hagedorn,
HEYMAN HAGEDORN'S APPEAL.
The only exceptions requiring attention on Heyman Hagedorn's appeal are those directed to the plaintiff's testimony in which she undertakes to speak to the subject of adultery, in support of the second issue, and, also, certain alleged confidential communications.
Counsel for plaintiff freely conceded in the trial court that the examination of his client in support of the second issue was at first inadvertent, or without proper attention to C. S., 1801, which prohibits either spouse from testifying to the other's adultery, and asked that the same be stricken out. This was done. The error was thus cured. Gray v. HighPoint,
Plaintiff was allowed to testify to a number of conversations with her husband, which, it is contended, were of a confidential nature and should have been excluded under authority of McCoy v. Justice,
Speaking to a similar situation in Stickney v. Stickney,
LULA HAGEDORN'S APPEAL.
The defendant Lula Hagedorn, in her answer, admits that Heyman Hagedorn caused title to the two lots in Greensboro to be placed in her name "for the purpose of securing the replacement of moneys she had loaned her son." Thus she only claims to hold the properties as security for loans, and concedes that the lots belong to her son. It has been found by the jury, however, upon ample evidence, that her claim of loans is fictitious, except as to the taxes advanced. Hence, the judgment would seem to be without prejudice to any of her rights. Taylor v. Taylor,
The plaintiff stands in the position of a creditor of her husband.Walton v. Walton,
The result is that none of the exceptions can be held to work a new trial on either appeal.
No error.