22 N.C. 126 | N.C. | 1838
The bill was brought for an injunction and relief by Smith and Yancy against Thomas and wife, and against Mrs. Williams and Mrs. Winstead, and stated that the plaintiffs at law claimed the slaves under a deed, purporting to be a deed of gift made to Mrs. Thomas by her mother on 1 August, 1822, and to be attested by the other two defendants, who were the sisters of Mrs. Smith. The bill charged that the deed was written by Mrs. Williams, and contrived by her and Mrs. Winstead, by conspiracy, to cheat Smith; that in fact it was (127) either made after the marriage and antedated or that those two defendants induced his then intended wife, their sister, over whom they had great influence, to execute it secretly and in fraud of his marital rights. The bill stated that Mrs. Williams had the custody of the deed and carefully concealed its existence until after the sale to Yancy, when *111 she proved its execution and procured its registration, and it charged and sought a discovery of many circumstances in detail in support of the general allegations first mentioned.
Among the statements of the bill were the following: First, that Smith, at the time of his marriage, had a good estate, and that two children were born of the marriage and were still living. Secondly, that Smith "had never seen the original deed, but prayed that the same might be produced for inspection in this court."
The transactions which gave rise to the controversy all took place in Person and Caswell counties, where the persons then resided. But the defendants had since removed to Georgia; and their answers were there taken separately under commissions. They set forth in detail all the circumstances of the writing, execution, delivery, and custody of the deed, and the motives for executing it, and stated explicitly that the whole was communicated to Smith and fully assented to by him before his marriage.
But the answers omitted to confess or deny the allegations respecting Smith's estate and his children, and were not accompanied by the production of the deed of gift, and contained no offer to produce it. For those exceptions the plaintiff filed exceptions to the answers.
Notwithstanding the exceptions, a motion was made on the part of the defendants to dissolve the injunction; and his Honor, thinking all the charges of fraud fully answered and denied, allowed the motion. From that the plaintiffs were permitted to appeal. It is contended on the part of the plaintiffs that unless the answers had been perfected in the points excepted to, or the exceptions (128) had been overruled, the court could not entertain a motion to dissolve the injunction. If exceptions are well founded, they certainly answer the motion to dissolve. But per se they ought not, we think, to have that effect. If merely taking exceptions, though frivolous, would fetter the defendants so tightly, we might except them in every case on the circuit, and especially when the remote residence of the defendant put it out of his power to perfect the answer promptly. Exceptions must be deemed well founded if the defendant submit to them, or, if upon a reference to the master, he report in favor of them, until that report be overruled by the court. But if the defendant do not submit, nor the plaintiff move for a reference of his own exceptions in time to get a report before the defendant has a right to move to dissolve, the *112 defendant may make his motion notwithstanding the exceptions. From the constitution of our courts this is unavoidable, as the means of preventing the plaintiff from taking frivolous exceptions for the purpose of staving off the motion to dissolve. Of necessity this brings on the exceptions, and the motion for a dissolution of the injunction, to be argued before the court together; for the court will not disregard the exceptions, but will look into them, and, if found not to be frivolous, will give them due effect in repelling the defendant's motion. It would, on the other hand, be but a pretext to strangle justice to allow the existence simply of a frivolous exception to stand in the way of hearing the parties upon their respective substantial allegations.
We agree also with his Honor in thinking that there is nothing in the exceptions here taken to prevent the decision that was made. Touching the circumstances of the husband, and the issue of the marriage, the facts either way would be perfectly immaterial to the main points of inquiry, whether the deed was executed before or after the marriage, or whether, if before, it was in fraud of the marital rights.
As to the other matter, this is not the proper method of presenting the objection. The deed is not to be made part of the answer or annexed to it. No allegation in the bill calls for it, or ought to call for it, as (129) annexed to the answer. If a paper material to the plaintiff be in the defendant's possession, or if an inspection of a paper belonging to the defendant be essential to the plaintiff's case, there is an easy method, in a proper case, of compelling its production by an order obtained for that purpose. If disobeyed, the defendant will be in contempt, and of consequence could make no motion. But here the attempt is to tie up the defendants because they have not voluntarily filed the deed, without even a motion for such an order.
As we think that, notwithstanding the omissions pointed out by the plaintiffs, the answers as they stand are directly, explicitly, and fully responsive to all charges of the bill as to the fraud, or as to the circumstances of which a discovery is sought as evidence of the fraud, the decree must stand as pronounced by his Honor. Should the plaintiffs at law recover, the court can protect the plaintiffs in this Court from danger of loss by the change of possession by requiring security for the production of the slaves to answer the decree in this cause, if a reasonable ground for such an order can then be laid.
The plaintiffs must pay the costs in this Court, and this opinion be certified by the clerk to the court of equity for Caswell.
PER CURIAM. Direct accordingly.
Cited: Edney v. Motz,