Green v. Green, 143 N.C. 406 (1906)

Dec. 18, 1906 · Supreme Court of North Carolina

143 N.C. 406

GREEN v. GREEN.

(Filed December 18, 1906).

Divorce — Alimony—Contempt—Appeal—Former Decision.

1. Where plaintiff obtained a judgment of divorce from bed and board against defendant, and the defendant was ordered to convey a one-fourth. interest in a certain tract of land to a trustee for the use and benefit of plaintiff or pay into- the Clerk’s office $250 for the same purpose, the land to be leased by the trustee or sold and the proceeds applied to the support of plaintiff, the execution of a quit-claim deed by defendant to the trustee was not a compliance with the order, where it was afterwards discovered that defendant had, prior to the judgment of separation, conveyed all of his interest in the land to his son; and an order adjudging him in contempt and committing him to jail until he had complied with the order of alimony was proper, the Court having found that he was fully able to comply.

2. Where the defendant was adjudged in contempt and the ruling was affirmed on appeal, and upon the presentation of the certificate of this Court, the Court below affirmed the former order in every particular and directed the same to be executed, the defendant cannot, by a second appeal, review the former decree of this Court.

ActioN by Maggie V. Green against John A. Green, heard by Judge T. A. McNeill and a jury, at the February Term, 1906, of the Superior Court of Jackson.

This is an attachment for contempt for failing to comply with an order of the Court for alimony. The feme pla.int.j-ff obtained a judgment of divorce from bed and board against the defendant at May Term, 1904, of the Superior Court, when J udge J ones, in the judgment of separation, after finding the necessary facts, ordered that the defendant convey a one-fourth interest in a certain tract of land to V. F. Brown in trust for the use and benefit of the plaintiff and her child or pay into the Clerk’s office two hundred and fifty dollars for the same purpose, the land to be leased by the trustee and the rents applied to the support and maintenance of the plaintiff and her child, or that it be sold and the proceeds applied in. like manner. The defendant executed a quit-claim deed to the trustee for the land. It was afterwards discovered that he had conveyed the land to his son in October, 1900. The trustee demanded possession of the defendant and his son, who refused to let him into possession, the defendant at the time denying that he owned any interest in the land and his son asserting sole ownership in himself.

At March Term, 1905, Judge Shaw issued a rule, requiring the defendant to show cause why he should mot be attached for contempt for failing to comply with the order of Judge Jones. The hearing of this rule was continued for the defendant to answer, but he has never answered the same. Judge Shaiu found as a fact that the defendant had not in any way complied with the said order, although he was fully able to do so, and especially that he could pay the two hundred and fifty dollars, and that he had wilfully and contemptuously failed to do so. lie thereupon adjudged the defendant in contempt of the Court for refusing to obey its order, and further adjudged that he be imprisoned in the county jail until he had complied with the same. The defendant appealed, and at Spring Term, 1906, of this Court the order of Judge Shaw was affirmed (per curiam), 140 N. C., 651.

At May Term, 1906, the matter came on to be heard before Judge McNeill upon the certificate of this Court and the motion of the defendants to have satisfaction of Judge Jones' order entered of record. Judge McNeill, upon a review of the orders and facts in the case, held that the defendant bad not complied with tbe order of Judge Jones, and denied bis motion. He thereupon affirmed tbe order of Judge Shaw and directed tbat it be executed. It appeared tbat tbe defendant bad complied with tbe order of Judge Jones in all respects except as to tbat part of it relating to tbe execution of tbe deed or tbe payment of tbe money in lieu thereof.

Tbe defendant excepted to Judge McNeill’s order, and appealed.

Waller E. Moore and Shepherd & Shepherd for tbe plaintiff.

W. T. Crawford and F., E. Alley for tbe defendant.

Walker, J.,

after stating tbe case: Tbe only contention made in this Court by tbe defendant’s counsel was tbat be fully complied with tbe order of Judge Jones when be executed tbe deed to tbe trustee therein appointed. In support of this position, it was argued tbat Judge Jones necessarily found as a fact tbat tbe deed from tbe defendant to his son was fraudulent and void, because be recited in, bis order tbat it appeared tbe defendant owned-a one-balf interest in the land. We do not think tbat any such inference can reasonably be deduced from tbat recital, when it is considered with tbe context of tbe order, as it should be. It is clear tbat tbe recital was based upon tb© fact tbat on 10 March, 1899, a deed for the one-balf interest bad been made by John N. Hunter to tbe defendant (tbe other half having been conveyed to bis son by the same deed), and tbe admission of tbe parties tbat tbe defendant was, at tbe time the order Avas made, tbe owner of tbe one-balf interest acquired by tbe deed. But, evidently, Judge J ones did not know of tbe subsequent deed of tbe father to tbe son, or be would not have made such a recital, as the defendant’s representation tbat be owned an interest in tbe land was not true. It would appear tbat tbe defendant was concealing tbe existence of this deed from tbe Court and from bis wife, and attempted to commit a fraud in doing so. lie knew that be bad made tbe deed to bis son, and be must bave known that tbe Court and bis wife were ignorant of tbe fact. Tbe recitals in tbe order of Judge Jones all tend conclusively to show it. But however this may be, whether be was guilty of an intentional or fraudulent concealment or not, we do not think be has complied with tbe order. He was required to convey a one-fourth interest to tbe trustee, whereas it turned out that, when be made tbe deed, be bad no such interest to convey. He bad, before that time, conveyed all of his interest to bis son. Perhaps this was his reason for making tbe deed in tbe form of a quitclaim. Tbe law and tbe Court intended not merely a color-able, but a real and substantial compliance with tbe order. We would mock at this plaintiff’s calamity and turn her away empty-handed, when she is entitled to relief, should we bold that there bad been any genuine attempt by the defendant to comply with tbe order. We bave found no evidence in this record of any fraud committed by the defendant when be conveyed to bis son; and besides, if bis deed was fraudulent and void as to the plaintiff, tbe Court did not intend that, under its order, she was not to receive tbe use and benefit of the land, but instead get a lawsuit. Besides, should tbe defendant be permitted to plead bis own fraud, in order to delay and vex the plaintiff, whose claim for alimony is at least meritorious ? Tbe purpose was that a good title to tbe one-fourth interest should be conveyed to the trustee; for bow could be well lease tbe land or sell it without such a title ? Tbe Court assumed that tbe defendant bad a valid 'title, for otherwise it would simply bave ordered payment of tbe money. No other conclusion can be legitimately drawn from tbe facts.

But Judge Shaiv bad adjudged tbe defendant in contempt and ordered him to stand committed until be bad complied with the order. His ruling was affirmed by this Court on appeal. It has not been modified by Judge McNeill, but on the contrary affirmed in every particular, and the said order was directed by him to be executed. The defendant cannot, by .a second appeal, review the former decree of this Court. Pretzfelder v. Ins. Co., 123 N. C., 164.

Judge McNeill found as a fact that the defendant had denied that he had any title to the land or any interest therein, when the trustee demanded possession of him and his son. How, in the face of this finding, can he now ask to have it entered of record that he had complied with the order of the Court ? As he was not able to malee the requisite title, he should have paid the money into Court according to the terms of the orders of Judge Shaw and Judge McNeill. This is what they clearly meant should be done, unless he had otherwise complied with the order by securing a good title to the one-fourth interest, and conveying that interest to the trustee. Not having done so and not proposing to do so, he was manifestly if not flagrantly disobeying the order, and was therefore acting in contempt of the authority of the Court, for which conduct he was properly adjudged to be committed. Pain v. Pain, 80 N. C., 325.

We find no error in the ruling of the Court.

No Error.