59 S.E. 683 | N.C. | 1907
There was a verdict for the plaintiff and judgment on the verdict, and defendant excepted and appealed.
This case was before us on a former appeal, and was sent back for a new trial of the issue as to damages. See Lemly v. Ellis,
Under the charge of his Honor, by fair intendment, the jury were directed to make the apportionment on the basis of the actual value of the land, and in this there was error, to defendant's prejudice, for there was some evidence tending to show that the actual value exceeded the amount of the consideration.
Defendant further excepts to the refusal of the court below to set aside a portion of the attached property for the support of defendant and his family, it having been made to appear that defendant is now insane and has a wife and infant child resident in the State, and there being evidence tending to show that defendant is insolvent.
It is an established principle with us that the property of an insane person, certainly where same is in custody of the court, will not be applied to the payment of his general indebtness, as distinguished (223) from claims for his present maintenance, until a sufficient fund is set aside for the support of the lunatic and his family, including his wife and infant children, who are a part of his household. In reLatham,
All the lunatic's estate has been converted into money, and only the sum of $942.14 is now within the reach of this Court. We think that this fund must be retained by the committee, not to pay his balance or the debts of any of the creditors, but for the purpose of maintaining the lunatic and his wife and infant children. That the court must reserve a sufficient maintenance for the lunatic before making an order for payment of debts, or allowing to the committee sums already applied by him *163
to that purpose, is clear from the nature of the jurisdiction in lunacy, as well as from the decision. In Ex parte Hastings, 14 Ves., 182, Lord Eldon
said he could not pay a lunatic's debts and leave him destitute, but must reserve a sufficient maintenance for him; and in Tally v. Tally,
With respect to the maintenance of the wife and such of the children as, from tenderness of age or other causes, are dependent upon the parent, this Court, in Brooks v. Brooks,
On the first trial of this case the judge below was correctly advertent to the modification suggested, and rendered judgment directing an application of the property attached, and its proceeds, to the judgment, after hearing evidence and finding that the defendant himself was a resident of the State of New York and being cared for in a hospital there for the insane, and that his wife, a resident in Winston, N.C. with an infant child, aged about 13 years, had property, conveyed to her by defendant, to the value of at least $10,000, and affording an annual income of about $1,200.
It may be well to note that the time when the facts and circumstances pertinent to this question should be ascertained and declared is when the judgment is finally entered appropriating the funds, and it may be that a new inquiry should be had. But if these or substantially similar conditions exist when the judgment is rendered, we think that the plaintiff should be allowed to have judgment appropriating (225) the property attached to the amount he may recover.
For the error in the charge there will be a new trial on the issue as to damages.
Partial new trial.
Cited: Campbell v. Shaw,