#### SLINGLUFF, JOHNS & CO. v. HALL & PEARSALL and W. A. HOUSTON.

(Decided April 11, 1899).

Attachment — Mortgage—Bill of Sale — Continuance—Non-Preference Act of 1895 (repealed).

1. Granting or refusing a continuance is a matter of discretion and not reviewable, unless the discretion is palpably abused.

2. Where an insolvent debtor on December 6, 1895, executed a mortgage to secure $500, money then loaned to'him, and also to secure $923.86, prior indebtedness to the same party, and on December 19, 1895, executed a bill of sale on a portion of the mortgaged property to the same Jarty in payment of said $923.86 — both instruments being registered, on the latter date — and on January 9, 1896, another creditor had an attachment levied on part of the same property, contending that both instruments were mere seeuities for the pre-ex-isting debt and therefore void under the Non-Preference Act of 1895 — the true issue, decisive of the case, was submitted to the jury: Was the bill of sale an absolute sale of the property to pay the pre-existing debt of $923.86?

Civil AotioN, with warrant of attachment, tried before Robinson, J., at December Term, 1897, of DupliN Superior Court.

During the pendency of the action, the defendant W. A. Houston, the common debtor of the other parties, having died, J. B. Sandlin was appointed his administrator. The cause was placed upon the calendar by consent of both sides for trial, and the plaintiffs were notified that at the trial term he would file his answer, raising substantially the same issues raised by the answer, on file, of Hall & Pearsall. At the trial term Sandlin applied to be made a party-defendant with leave to file his answer, which was allowed. The plain*398tiffs claimed, a continuance on the ground of surprise. This was disallowed, and they excepted. Their debt against Houston was admitted. The issues, evidence, special instructions, charge of the Court and exceptions of defendants are adverted to in the opinion.

The verdict was in favor of defendants, and plaintiffs appealed from the judgment rendered.

Messrs. Stevens & Beasley, and Armistead J ones, for plaintiffs (appellants).

Messrs. Simmons, Bou & Ward, for defendants.

Eaieolotii, C. J.

The plaintiffs attached certain property in the hands of defendants, which had been conveyed to them by W. A. Houston, intestate of defendant Sandlin.

On December 6, 1895, said Houston executed a mortgage to defendants Hall & Pearsall to secure $500 cash and $923.86 of prior indebtedness, conveying certain property therein mentioned, and on December 19, 1895, sold and conveyed by a bill of sale a part of the same property to said Hall & Pearsall in payment of said $923.86. Both of said instruments were recorded on December 19, 1895. The attachment was levied on some of said property.

On February 18, 1896, the plaintiffs filed their complaint, alleging among other things that said Houston was insolvent and that said conveyances were made with intent to cheat a'nd defraud the plaintiffs and other creditors of said Houston. Hall & Pearsall of February 12, 1897, filed an answer denying the allegations of fraud, etc.

On December 13, 1897, the defendant Sandlin filed his answer, substantially the same as the answer of Hall & Pear-sall, denying the allegation of fraudulent intent in said con-, veyances. Sandlin’s answer was filed on the first day of Court at December Term, 1897, and the trial was had on the same day.

*399Plaintiffs’ counsel moved for a continuance of tbe cause on tbe ground tbat Sandlin’s answer -was just tben filed, and for time to answer the same. Tbe Court refused tbe motion and proceeded with tbe trial and tbe plaintiffs excepted.

Issues.

1. Was tbe bill of sale executed to seure a preexisting debt of $500? . .

Answer. No.

2. Was tbe bill of sale intended as a further or continuous security for the debt secured in tbe mortgage of 6th of December, 1895 ?

Answer. No.

3. Was tbe effect of tbe bill of sale and tbe mortgage executed by Houston to Hall & Pearsall on December 19, and 6, respectively, an assignment of defendant Houston’s property ?

Answer. No.

4. Did tbe defendant Houston assign, dispose of and secrete bis property with tbe intent to defraud tbe plaintiffs and other creditors ?

Answer. No.

5. Did tbe defendants Hall & Pearsall participate in tbe intent of Houston to defraud bis creditors?

Answer. No.

6. Was tbe bill of sale to Hall & Pearsall, on December 19, 1895, an absolute sale of the property to pay tbe preexisting debt of Hall & Pearsall of $923.86 ?

Answer. Yes.

Plaintiffs requested bis Honor to charge the jury as follows : '

Tbat if tbe jury shall believe from tbe evidence tbat tbe bill of sale was given to secure tbe amount or any part of *400tbe original debt intended to be secured by tbe mortgage, tbe relation between tbe parties would not be changed and tbe bill of sale is void, or rather in effect it was a security for tbe debt and void.

In lieu of tbe above prayer for instructions, tbe Court charged the jury that if they should find that bill of sale of 19th December was not a bona fide sale of tbe property therein described in payment of tbe $923.86, but was intended by tbe parties as a further security to any of tbe debts mentioned in tbe mortgage of tbe 6th of December, they should answer the first issue, “Yes.”

. Eor that bis Honor erred in giving tbe instruction in lieu of tbe one asked.

Tbe plaintiffs, in their sixth prayer, requested tbe Court to charge that if the bill of sale was intended for further security tbe relation of mortgagor and mortgagee was not changed, andthatthe bill of sale was void under tbe Non-Preference Act of 1895. This was fully given in tbe fifth prayer and other parts of tbe charge, and there was no error in failing to give tbe sixth prayer. Judgment was entered for the defendants, and the plaintiffs excepted.

Granting or refusing a continuance is a matter of discretion and not reviewable (Bank v. M’fg Co., 108 N. C., 282) unless the discretion is palpably abused. McCurrie v. McCurrie, 82 N. C., 296.

In the case before us the answer of Sandlin was in substance the same as that of Hall & Pearsall which had been on file for several months, and Sandlin’s answer raised no additional and material issue. The plaintiffs must be presumed to have come prepared to meet that issue, and it seems that a continuance was unnecessary and his Honor so held. That exception is not well taken.

The sixth instruction was given, not in words, but in substance.

*401Tbe plaintiffs’ contention is that the mortgage was void under the Act of 1895, and that the bill of sale was of the same character, and likewise void, as they were recorded on the same day and made with the same intent. Whether the bill of sale, December 19, 1895, was an absolute sale of the property to pay the pre-existing debt was submitted to the jury and the answer was, “Yes.” That finding determined against the plaintiffs the substance of their contention.

Whatever might have been the result, if nothing but the mortgage had appeared, the verdict on the sixth issue establishes the defendant’s right to the property. McKay v. Gilliam., 65 N. C., 180.

The registration of these instruments on the same day, i. e. December 19, 1895, was an incident and does not affect the character of the contracts set out and so registered. The attachment issued December 27, 1895.

On the above we see no error, and a discussion of other exceptions would not change the result.

Affirmed.