Brink v. . Black

77 N.C. 59

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

PeaRSON, C. J.

When a party prays for an instruction to which he is entitled, it is error to refuse it. The Judge is not required to adopt the words of the instruction ; he may :as a matter of taste change-the phraseology, but it is error to change its sense, or so to qualify it as to weaken its force. C. C. R, §§ 238, 239, 301.

"We put our decision on the fifth instruction prayed for, ■and the response thereto, as that entitles the defendant to a new trial. Evidently the instruction given is not a legitimate substitute for the instruction prayed for.

So the only question before us is ; was the defendant entitled to the instruction ?

If a conveyance is made with an intent to enable the debtor to hold his other creditors “ at arms length ” and to ■enjoy and dispose of his property, just as if he did not owe ■one cent, the conveyance is fraudulent, although the grantee .had a true debt, for the reason, that there is an intent to ■"hinder and delay creditors.”

Van Amringe was indebted to many persons, six or seven •thousand dollars. The mortgage of 1872 had the effect of keeping all of them off, for fear of a law suit, and he disposed ■of the kiln of brick and other articles to the value of, say ,$3500, for his own use, without interference on the part of the plaintiff; and in 1873, he owed the plaintiff by reason of " accommodation acceptances ” a larger amount than he ■owed in 1872. These facts and circumstances in connection, with the kiln of brick in 1872, constituted not only “ some •evidence,” but very strong evidence of an intention that the kiln of 1873, was to go in the same way as the kiln of 1872; that is, for the enjoyment of Yan Amringe in spite of his -creditors, the plaintiff standing by with his arms folded and being confident that he was secured in regard to all of his .accommodation acceptances.

There was error in refusing the instruction.

Pee Curiam. Venire de novo.