PEOPLES OIL COMPANY
v.
Ethel P. RICHARDSON.
No. 286.
Supreme Court of North Carolina.
November 1, 1967.Battle, Winslow, Scott & Wiley, Rocky Mount, for plaintiff.
Mitchell & Murphy, Raleigh, R. Conrad Boddie, Rocky Mount, for defendant.
BRANCH, Justice.
The sole question presented for decision is: Did the allegations of defendant's further answer and defense and counterclaim allege facts sufficient to constitute a defense or to state a cause of action entitling her to any relief?
It is apparent that plaintiff's motion to strike challenged the legal sufficiency of defendant's further answer and defense and counterclaim, and therefore it will be treated as a demurrer. Williams v. Hunter, 257 N.C. 754, 127 S.E.2d 546.
*373 In the case of Aman v. Walker, 165 N.C. 224, 81 S.E. 162, the Court stated clearly the principles as to fraudulent conveyances. Three of these principles pertinent to the facts alleged herein are:
"(3) If the conveyance is voluntary and made with the actual intent upon the part of the grantor to defraud creditors, it is void, although this fraudulent intent is not participated in by the grantee, and although property sufficient and available to pay existing debts is retained.
(4) If the conveyance is upon a valuable consideration and made with the actual intent to defraud creditors upon the part of the grantor alone, not participated in by the grantee, and of which intent he had no notice, it is valid.
(5) If the conveyance is upon a valuable consideration, but made with the actual intent to defraud creditors on the part of the grantor, participated in by the grantee, or of which he has notice, it is void."
Defendant alleges in her further answer and defense and counterclaim that the deed of trust under which plaintiff claims was given ostensibly as security for a past due indebtedness and was received by plaintiff for the purpose of aiding defendant's husband (transferror) "in his purpose of defrauding this defendant * * * in her rights of possession in the premises involved * * * in her rights in the deed of trust described in paragraph I" of the further answer and defense and counterclaim (the first deed of trust) "and in the order of the court for alimony pendente lite which is set out in paragraphs II and III" of defendant's further answer and defense and counterclaim.
"Before one can call on a court to redress or protect against a wrongful act done or threatened, he must allege that he is or will in some manner be adversely affected thereby. He must be the real party in interest." State ex rel. East Lenoir Sanitary District v. City of Lenoir, 249 N.C. 96, 105 S.E.2d 411.
The record shows that plaintiff is the owner of the record and legal title to the land concerned in this litigation, and, nothing else appearing, is the proper party to bring action for relief necessary to protect its legal interest. 1 McIntosh, N.C. Practice and Procedure, § 592, p. 298.
G.S. § 29-14 defines the share of a surviving spouse of an intestate, and G.S. § 29-30 has the practical effect of providing the benefits of dower to the defendant, at her election, if she should become the surviving spouse of Fred W. Richardson.
Although decided prior to the act which repealed dower, as such, the case of Gay v. J. Exum & Co., 234 N.C. 378, 67 S.E.2d 290, is pertinent in that it holds that except for purchase money mortgages and deeds of trust, the conveyance of land by the husband without joinder of the wife does not affect the wife's right to dower, nor do statutes of limitation affect her right until the death of her husband, since "the wife cannot be heard until she becomes a widow."
A remainderman may not maintain an action for the possession of land until after the expiration of the life estate. Narron v. Musgrave, 236 N.C. 388, 73 S.E.2d 6, and Loven v. Roper, 178 N.C. 581, 101 S.E. 263.
The defendant, Ethel P. Richardson, has no present right of possession. It is therefore apparent that she could not be adversely affected as to her possessory rights so as to be a real party in interest.
Neither can she support her cause of action by showing a better title outstanding in a third person. Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287.
Nor can she state a cause of action based on allegations that the conveyance was made for the purpose of defeating and *374 harassing her right to protect the said property from the first deed of trust, which contained her joinder as wife of the owner of the property.
G.S. § 45-45 provides:
"Spouse of mortgagor included among those having right to redeem real property. Any married person has the right to redeem real property conveyed by his or her spouse's mortgages, deeds of trust and like security instruments and upon such redemption, to have an assignment of the security instrument and the uncancelled obligation secured thereby."
There is nothing to prevent defendant from exercising her rights under this statute. She did not join in the execution of the deed of trust which she now attacks, none of her property rights can be affected by this deed of trust. She may protect her interests in the first deed of trust since she joined in its execution. Again defendant fails to allege facts to show that she will be adversely affected so as to make her the real party in interest Sanitary District v. Lenoir, supra.
The allegations that the deed of trust executed by defendant's husband to Robert L. Spencer, Trustee, in Book 827, page 140 of the Nash County Registry, was a voluntary conveyance made by her husband and received by plaintiff for the purpose of defeating, delaying and defrauding defendant's rights in the order of court for alimony pendente lite, poses a more serious question.
"It has been held that a conveyance made by a husband in anticipation of the wife's action for alimony or support, and in frustration of a satisfaction of a court award to her, is fraudulent and may be set aside unless the purchaser took without notice and for value. Similarly held has been a conveyance made by a husband while his wife's suit is pending or after the decree has been made in her favor." 2 Lee, North Carolina Family Law, sec. 162, pp. 264-265; 27B C.J.S. Divorce § 273, pp. 166-167; 79 A.L.R. 421; 49 A.L.R.2d 521.
"In Walton v. Walton, 178 N.C. 73, 100 S.E. 176, the holding of the court is succinctly stated in the third headnote as follows: `The wife's inchoate right to alimony makes her a creditor of her husband, enforceable by attachment, in case of his abandonment, which puts everyone on notice of her claim and her priority over other creditors of her husband.' Lambert v. Lambert, 249 N.C. 315, 106 S.E.2d 491.
"Both the statute, C.S. § 1-151, and the decisions of this Court require that the pleading be liberally construed, and that every reasonable intendment and presumption must be in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient." Woody v. Pickelsimer, 248 N.C. 599, 104 S.E.2d 273.
Applying this principle in testing the sufficiency of defendant's pleading, we hold that the lower court's order treating plaintiff's motion to strike as a demurrer ore tenus and allowing the motion was improvidently entered.
Reversed.