Goldstein v. Baer, 214 N.C. 832 (1938)

Oct. 19, 1938 · Supreme Court of North Carolina

214 N.C. 832

ELLIS GOLDSTEIN v. LOUIS BAER and Wife, SADIE BAER.

(Filed 19 October, 1938.)

Appeal by plaintiff from Gowper, Special Judge, at April Term, 1938, of HaeNEtt.

Affirmed.

This is a civil action instituted by the plaintiff to compel a partnership accounting and to liquidate partnership assets. Sadie Baer is only a nominal party defendant. The cause was referred to Jeff D. Johnson, Jr., referee, who duly reported his findings of fact and conclusions of law. The plaintiff entered numerous exceptions to the report and duly tendered issues arising thereon and demanded a jury trial.

The plaintiff, defendant Louis Baer and one Warren in 1925 acquired a large tract of land in Harnett County for speculation and resale. As all of the land was not sold a large part of it was farmed for a number of years. There were deeds inter partes and mortgages given to third parties to secure money which it is not here necessary to recite. On 10 May, 1927, the plaintiff and his wife executed and delivered to Solly Isaacs a deed with full covenants of warranty, conveying tbe interest of tbe plaintiff in said land to said Isaacs. Thereafter, Tract No. 7, wbieb bad been sold, was conveyed to tbe defendant and Mamie I. Gold-stein, wife of tbe plaintiff. Tbis tract was later conveyed to Lonis Baer in a partitioning proceedings instituted by bim against Mamie I. Gold-stein. Tbe "Warren interest in said lands was conveyed to tbe defendant and Mamie I. Goldstein on 18 July, 1928. On 18 January, 1929, Louis Baer, Solly Isaacs and Mamie I. Goldstein executed a lease to said lands to N. M. Johnson. Tbe names of Solly Isaacs and Mamie I. Goldstein were signed to said lease by tbe plaintiff as agent. All of said lands except Tract No. 7 acquired by tbe defendant in tbe proceedings for partition were foreclosed by tbe trustee in one of tbe deeds of trust and were conveyed on 14 March, 1931, to tbe defendant. Thereafter neither plaintiff nor bis wife participated in any manner in tbe control or management of said property.

On tbe trial of tbis cause, tbe plaintiff, admitting that bis deed to Solly Isaacs was knowingly executed in tbe form of a deed, undertook to show that there was an understanding between bim and Isaacs that said deed should be held as security for amounts due Isaacs.

Tbis action was instituted 23 May, 1935.

At tbe conclusion of all tbe evidence tbe court below, on renewal of tbe defendant’s motion to nonsuit, entered judgment dismissing tbe action as of involuntary nonsuit. Tbe plaintiff excepted and appealed.

R. L. Godwin and J. Faison Thomson for plaintiff, appellant.

J. R. Young, J. A. McLeod, and Robert II. Dye for defendants, appellees.

Pee Oueiam.

Tbe uncontradicted testimony discloses that at tbe time of tbe institution of tbis action plaintiff bad no interest in tbe lands and alleged partnership properties which are tbe subject matter of tbis suit. lie bad conveyed tbe same to bis brother-in-law, Solly Isaacs, and bad thereafter recognized and ratified tbe title of tbe grantee by signing a lease to tbe property in tbe name of tbe grantee. He cannot collaterally attach said deed in tbis action. Nor can be reform tbe same in a cause in which neither bis wife nor tbe grantee is a party.

Even if tbe plaintiff be permitted to show title to tbe property in direct conflict with bis own deed, be has waited more than four years since tbe partnership property was sold under foreclosure before bringing tbis action and be has offered no evidence which would repel tbe running of tbe statute of limitations.

We concur in tbe view of tbe court below that upon all tbe evidence tbe plaintiff has failed to establish a cause of action.

Affirmed.