Reiger v. . Davis

67 N.C. 185

• Court: Supreme Court of North Carolina
• Decided: June 5, 1872
• Status: Published

Opinion

Boyden, J.

This was a civil action for the recovery of land, both parties claiming under Abigail Hill. The plaintiff, by a purchase at a sale of the Sheriff, under a judgment and execution against the said Abigail, and the defendants by a purchase made by Ward, under whom the defendant claims, previous to the test of the execution under which the plaintiff sets up title ; and the main question in the cause was as to the bona fides of the sale to Ward. This is quite a different case from the case of Satterthwaite v. Hicks, cited by plaintiff’s counsel. In this case the parties to the transaction were examined as witnesses, and testified that the trade was fair and bona fide, and likewise proved the consideration paid for the land was a fair price, and that there was no purpose of secrecy. But in the ease cited by plaintiff there was no evidence how, or upon what consideration the several bonds used in payment were founded, and these formed a large portion of the consideration lor the purchase.

It is a rule of law, to be laid down by the Court, that when a debtor, much embarrassed, conveys property of much value to a near relative, and the transaction is secret, and no one is present to witness the trade but these near relatives, it is to be regarded as fraudulent; but when these relatives are made witnesses in the cause, and depose to the fairness and Iona fides of the transaction, and that there was, in fact, no purpose of secrecy; it then becomes a question for the jury to determine the intent which influenced the parties, and to find it fraudulent or otherwise, as the evidence might satisfy them. Upon this part of the case, we think his. Honor submitted the question fairly to the j ury, with proper instructions, to enable them to arrive at the truth of the transaction.

There were various badges of fraud alleged on the part of the plaintiff, but all these were brought by his Honor distinctly to the notice of the jury, in his charge, with the like proper instruction, and we find no error in this.

But it is insisted on the part of the plaintiff, that his Honor invaded the province of the jury, and violated the Act of ’96, by expressing an opinion upon the facts of the case.

This violation of the Act of ’96 is alleged to -have been made in using the following language :

Does the bargain between Ward and Dr. Hill, by which he bought a note on Mrs. Hill, amounting in principal and interest to $2000, for its face, $1300, afford of itself, or in connection with the embarrassed condition of Mrs. Hill, satisfactory evidence that Ward was a party to the iniquitous transaction of endeavoring to defraud Mrs. Hill’s creditors ? Is it consistent with reason, that every man who trades with one in failing circumstances, is a party to a fraud ?

These questions might have been asked in such a tone and manner, as to convey to the jury his Honor’s opinion upon the facts. But when the record merely shows that these questions were asked, without anything in the record showing the emphasis or manner in which they were asked, this Court cannot see that his Honor violated the Act of ’96. In the case of the State v. Simmons, cited as authority by the counsel, it appeared upon the record that his Honor who tried that case, asked the question with emphasis and in an animated tone, where was the evidence to' establish the fact f Had the record in this case showed that these questions had been asked with peculiar emphasis and in an animated tone, as in the case of the State v. Simmons, this Court would have felt bound, by that authority, to grant a new trial.

It is further insisted that his Honor erred in instructing the jury, “ that if Mrs. Hill and her son conspired to cover up her property to defraud her creditors, "Ward would not be affected by such fraud if he had no knowledge thereof, and the trade was in fact bona fide on his part.”

The counsel for the plaintiff, to show that his Honor erred in; this part of his charge, cited the case of Devries and Co. v. Phillips and Haywood, 63 N. C. R. 53. The opinion of his Honor in that case is misrepresented, if it is supposed to mean that a fraudulent intent on the part of the debtor alone will render the contract void on the ground of fraud, when the grantee has no knowledge of this fraudulent intent, and the trade is bona fide on his part and for a fair consideration. To vitiate the trade and render it fraudulent and void, the grantee must be a party to this corrupt intent, or have some knowledge of the execution of it at the time of the execution of the contract. Lassiter v. Davis, 64 N. C. R. 498.

There is no error. This will be certified.

Per Curiam. Judgment affirmed.