#### MAUNEY v. HAMILTON.

(Filed April 14, 1903.)

1. PLEADINGS — Time to Plead — Answer—Trial Judge — Discretion—The Code, See. 278.

It is discretionary with the trial court to allow the defendant to file an answer at the trial term.

2. EVIDENCE — Incompetent—Withdrawal from the Jury — Instructions.

The erroneous admission of evidence is cured by its withdrawal from the jury.

3. EVIDENCE — Judgments—Executions—•Insolvency—■ fraudulent Oonvey-ances.

In an action to set aside a fraudulent conveyance, a judgment and a return of execution thereon unsatisfied is strong but not conclusive evidence of insolvency.

ActioN by Y. Mauney against E. B. Hamilton and others, heard by Judge Walter U. Neal and a jury, at December Term, 1902, of the Superior Court of Stanly County. Erom a judgment for the defendants the plaintiff appeals.

*296 Montgomery & Orowell, for tbe plaintiff.

J. M. Brown, Adams, J eróme & Armfield and B. JE. Austin, for tbe defendants.

PLAINTIPP's appeal.

CoNNOR, J.

Tbe plaintiff alleged tbat tbe defendant E. B. Hamilton was indebted to bim in tbe sum of $180.00 and interest; tbat said indebtedness bad been reduced to' judgment wbicb was duly docketed in tbe Superior Court of Stanly County, January 6, 1896; tbat prior to said date tbe defendant E. B. Hamilton, for tbe purpose and with tbe intent to defraud bim, conveyed to bis wife, tbe defendant Mary E., a lot in tbe town of Albemarle and a tract of land in Stanly County containing 40 acres; tbat thereafter tbe defendants C. B. and N. E. Little, with notice of said fraudulent intent and purpose in tbe execution of said deed, purchased tbe town lot from the feme defendant. Tbe plaintiff demanded judgment tbat said deed be set aside and tbat said real estate be subjected to tbe payment of bis judgment.

Tbe defendants E. B. Hamilton and wife denied tbe fraudulent intent and purpose in tbe execution of tbe deed, and averred tbat tbe same was made upon a full and fair consideration. They also denied tbat E. B. Hamilton was indebted to tbe plaintiff. Tbe other defendants denied any knowledge of tbe fraudulent intent and purpose in tbe execution of said deed, and alleged tbat they purchased said land for full value and without notice of any vitiating element in said deed or tbe execution thereof.

When tbe case was called for trial tbe defendant M. F. Little bad filed no answer, and tbe plaintiff moved for judgment against bim for tbe want of an answer. The motion was denied, and $he judge in tbe exercise' of bis discretion permitted tbe defendant to file an answer, and tbe plaintiff excepted.

*297It was entirely witbin the discretion of the judge to permit the defendant little to file an answer. In view of his relation to the controversy, no judgment could have been rendered against him until the preliminary issues between the plaintiff and the other defendants had been settled. It would have been manifestly improper to render judgment against him at that stage of the proceedings. The wisdom of his Honor’s course was vindicated by the finding of the jury upon the second issue. The exception cannot be sustained. Clark’s Code, Sec. 273.

The court, submitted the following issues:

1. Is E. B. Hamilton indebted to V. Mauney the plaintiff as alleged in the complaint?

2. Hid E. B. Hamilton make the deed set out in the complaint to his wife to delay, defeat or defraud the plaintiff ?

3. Did the defendant Mary E. Hamilton take the deed from her husband, knowing his intent to hinder, delay or defeat the plaintiff and to prevent the plaintiff from collecting the debt her husband owed him ?

4. Did the defendants Little or either of them, take the deed from E. B. Hamilton and his wife Mary E. with notice of the fraudulent intent of Hamilton and his wife?

The plaintiff introduced the judgment docket of the Superior Court showing judgment in his favor against E. B. Hamilton, dated Dec. 14, 1895 and docketed January 1,. 1896, which was unsatisfied, and under which the defendant Hamilton’s homestead and personal property exemption had been allotted. The plaintiff also introduced a deed from E. B Hamilton to his wife dated August 13, 1895, and a deed from Hamilton and wife to Little, dated May 6, 1896. He also introduced evidence tending to show that Hamilton was insolvent at the time he conveyed the land to his wife. He also introduced a witness who testified that a few days after Little had purchased the land from Hamilton’s wife, *298he told him (Little) that Mauney had a judgment against Hamilton which was unsatisfied and Little replied that there was $100.00 of the purchase money unpaid, and that he would hold that back.

The defendant offered a deed from V. Mauney to' I. W. Snuggs, dated January 1, 1898, conveying certain land which had been conveyed tc Mauney as trustee by the defendant Hamilton. The plaintiff objected, the objection was overruled and the plaintiff excepted.

The defendant offered to prove by one Austin the present value of the land conveyed to Mauney as trustee. The plaintiff obje.cted, the objection was overruled and the plaintiff excepted.

The deed from the plaintiff to Snuggs had m> bearing upon the issues being tried upon this appeal, nor did the testimony, as to' the value of the land conveyed bj the deed from Hamilton to the plaintiff trustee, and this testimony was expressly withdrawn from the consideration of the jury by his Honor in the charge. As will be seen in the disposition of the defendant’s appeal, this testimony would have been relevant upon the defendant’s equitable counterclaim. The action of the court in withdrawing the deed and testimony cured any error in its admission. We cannot perceive how, in view of the charge of his Honor, it could have been prejudicial to the plaintiff. The exception cannot be sustained.

The plaintiff in apt time requested his Honor to charge the jury that the proof — that judgment has been obtained against the defendant Hamilton and execution was issued and placed in the hands of the sheriff, who laid off the homestead and no surplus was found belonging to the defendant with which to satisfy the plaintiff’s debt- — shows that the defendant at the time he made the deed to his wife was insolvent “and I charge you, if you believe the evidence of the plaintiff on the question of insolvency, you will find that the defendant *299Hamilton was insolvent at tbe time be made tbe deed to bis wife.”

In lien thereof, tbe court instructed the jury as follows: “The proof that judgment bas been obtained against tbe defendant Hamilton and execution bas issued and was placed in tbe bands of tbe sheriff, who with appraisers allotted tbe homestead and no surplus was found belonging to tbe defendant with which to satisfy the plaintiff’s debt — is very strong evidence tending prove that tbe defendant at tbe time be made the deed to bis wife was insolvent, but it is not conclusive, and it is the duty of tbe jury in passing upon tbe question of insolvency to take into consideration all tbe evidence which bas been introduced tending to show bis real financial condition.” Tbe defendant excepted.

We think that bis Honor’s instruction was a correct statement of tbe law in respect to tbe weight to be given to tbe judgment and tbe return of execution unsatisfied. As his Honor very properly said to tbe jury, this testimony is very strong evidence of tbe fact sought to be proved, and in tbe absence of any further testimony would have fully justified tbe jury in finding tbe fact as contended by tbe plaintiff, but it was not conclusive evidence. Tbe exception must be overruled.

Tbe other prayers for instruction were directed to tbe fourth issue in regard to tbe purchase by tbe defendant Little, and as tbe jury found tbe second issue in tbe negative they were not called upon to settle tbe fourth issue. It is therefore unnecessary for us to consider tbe exceptions in regard to tbe sufficiency of tbe evidence as tending to fix Little with notice of tbe condition of tbe defendant and tbe circumstances under which be purchased.

We do not find any error in tbe record, and tbe judgment upon tbe plaintiff’s appeal must be

Affirmed.