Atkinson v. City of Asheville, 205 N.C. 36 (1933)

June 28, 1933 · Supreme Court of North Carolina
205 N.C. 36


(Filed 28 June, 1933.)

Municipal Corporations F e — Evidence of fraud and collusion between officers and vendor held sufficient in action to set aside deed to city.

In this action to set aside and cancel a deed to a city on the ground of fraud and collusion between the officers of the city and the officers and stockholders of the vendor, the evidence is held to permit the inference that the sale was made without warrant of law, that the price paid was grossly excessive, and that certain city officers were financially interested in the transaction to the knowledge of the other defendants, and that the interests of the city were not adequately protected by those defendants charged with that duty, and the evidence is held sufficient to be submitted to the jury.

Appeal by plaintiff from Clement, J., at August Term, 1932, of BUNCOMBE.

Civil action by plaintiff, wbo sues on bebalf of bimself and other taxpayers, (1) to cancel deed from French Broad Cemetery Company to city of Asheville, purporting to convey 181.22 acres of land for cemetery purposes, on tbe ground of fraud and collusion between certain officers of tbe city and officers and stockholders of tbe cemetery company; and (2) for an accounting for funds thus wrongfully obtained from tbe city of Asheville. For a fuller statement of tbe case, see report on former appeal, Atkinson v. Greene, 197 N. C., 118, 147 S. E., 811.

In tbe present suit, tbe city of Asheville has joined with tbe plaintiff in tbe prosecution of tbe action.

At tbe close of plaintiff’s evidence, there was a judgment of nonsuit, from wbicb plaintiff appeals, assigning errors.

J. Q. Merrimon, Marcus Erwin and Alfred S. Barnard for plaintiff.

Robert M. Wells, A. Hall Johnston and Garter <& Garter for defendants, other than the city of Asheville.

*37Stacy, C. J.

There is allegation to the effect, and the evidence permits the inference, though it may not compel the conclusion, that the sale in question was without adequate warrant of law; that the price paid was grossly excessive; that at least two of the city officials, to the knowledge of the other defendants, were financially interested in the transaction; and that the interests of the city of Asheville were not properly eared for by those of the defendants charged with such duty.

This evidence, it would seem, is sufficient to carry the case to the jury under the principles announced in Brown v. R. R., 188 N. C., 52, 123 S. E., 633, S. v. Williams, 153 N. C., 595, 68 S. E., 900, and differentiates it from Harrison v. New Bern, 193 N. C., 555, 137 S. E., 582, cited and relied upon by defendants.

¥e refrain from a discussion of the evidence, as its credibility is for the jury.