The evidence in this "cause, considered in the light most favorable to the plaintiffs, tends to show: That the defendant Perry Bryant and his wife, Myrtle Bryant, separated in 1927; that in April, 1929, the defendant Perry Bryant was convicted under a warrant charging him with abandonment and nonsupport of his wife and children; that judgment was entered requiring said defendant to pay to the use of his wife and children $25.00 per month until the sum of $500.00 was paid; that since the year 1930 Perry Bryant has not made any contribution towards the support of his said children except that the plaintiff Madeline Bryant has been living with him for a short period; and that the mother of said children and members of her family have supported the plaintiffs during said period, except for the time Madeline Bryant has lived with her father and Sybal Bryant, now married, has lived with her husband; that in the spring of 1936 the plaintiffs, through their next friend, instituted a similar suit against Perry Bryant, now a resident of California; that in said suit constructive service of process was attempted without attachment; that while this former suit was pending Perry Bryant returned to North Carolina and executed a deed for the premises in controversy to his brother, the defendant Arthur J. Bryant, for a recited consideration of $100.00 and other valuable con*8siderations; that the grantors in said paper writing did not go before the clerk of the court, or a notary public, or a justice of the peace, who were convenient to the office of the lawyer who wrote the deed, but instead went before a notary public some distance away and acknowledged the execution of same; that while said former action was pending and before the execution of said deed, counsel for the plaintiff had a conversation with the defendant Arthur J. Bryant, in which he advised the said Bryant that he was seeking to have the lands of the defendant Perry Bryant in Edgecombe County subjected to the payment of reasonable support for the plaintiffs, and further advised him that an action was pending for that purpose; that when Perry Bryant returned to North Carolina he did not make any effort to see his children and made no contribution to their support; that the consideration for the execution of said deed was $100.00 cash, the cancellation of a $300.00 debt, which was barred by the statute of limitations, and the assumption by Arthur J. Bryant of the balance due on a testamentary charge against the interest of Perry Bryant in said land after first crediting said charge with the proceeds of Perry Bryant’s interest in the personal estate of his father.
The former suit was dismissed for defective service of summons and this action was instituted.
While the plaintiffs, in their complaint, seek to recover for future support, as well as for past support, an examination of the record discloses that the jury attempted to award compensation for support up to the date of the trial only. The court, in its charge, called the attention of the jury to the fact that the plaintiffs were seeking to recover $750.00 compensation for support up to the date of the institution of the action, and in that connection instructed them that a computation upon the basis of the evidence would exceed $750.00, but that the jury was restricted to the amount plaintiffs prayed for in their complaint. He further instructed the jury that the plaintiffs were seeking to recover $5.00 per month each for the two then living with their mother, since the filing of the complaint. This would make $10.00 per month, and the cause was tried approximately five months after the institution of the action. Thus, it is apparent the jury allowed $750.00 for support to the .date of the institution of the action and $50.00 for support from the date of the institution of the action to the date of trial, making the total of $800.00, which was the answer to the fourth issue.
The complaint as filed was not sufficient to bring the action within the terms of C. S., 1005. During the trial plaintiffs were permitted to amend the complaint so as to incorporate sufficient allegations to bring the action within the terms of that statute. During the progress of the *9trial,' in bis charge to the jury, the trial judge instructed the jury, in effect, that the plaintiffs had failed to bring their cause of action within the terms of C. S., 1005, and the issues were submitted to the jury upon the theory that the plaintiffs were required to show actual fraud as contemplated by the original complaint.
Treating this cause as if it was, or should have been, submitted to the jury under the terms of C. S., 1005, giving the plaintiffs the benefit of such presumption of fraud as might arise upon the evidence that the defendant Perry Bryant had conveyed the land in controversy to a near relative, plaintiffs’ action must fail for the reason that they have not established the fact that they were creditors of the defendant Perry Bryant at the time of the institution of the action. Such support as they had received had come from their mother and members of her family. Their personal estates had not been invaded to pay any part of the. cost of their maintenance. The cause of action, if any, arising upon these facts, rested in the mother and not in the children.
The one determinative question presented to us upon the appeal of Arthur J. Bryant is: Was there sufficient evidence of fraud in the execution of the deed from Perry Bryant to Arthur J. Bryant to be submitted to the jury? We are constrained to answer this question in the negative. Under no view of the testimony is a finding that said conveyance was fraudulent, or that the defendant Arthur J. Bryant knew and participated therein, warranted.
This Court has heretofore held that children abandoned by their father may institute an action to compel future support. Green v. Green, 210 N. C., 147; Pickelsimer v. Critcher, 210 N. C., 779. These cases are not in point and are not authoritative in this action. In neither of those cases was past support furnished by another the subject matter of the action.
While the defendant Perry Bryant was served with summons by publication, he filed an answer and is now in court. In their complaint the plaintiffs prayed that the said defendant be compelled to provide them with future support under the authority of Green v. Green, supra, and Pickelsimer v. Critcher, supra. The judgment below, entered in accordance with this opinion, should provide that the cause be retained upon the docket to determine the rights of the plaintiffs under said prayer for relief upon proper issues to be submitted to a jury.
The motion of A. J. Bryant for judgment as of nonsuit should have been allowed.
Reversed as to A. J. Bryant.
New trial as to Perry Bryant.