31 N.C. 191 | N.C. | 1848
The plaintiff claimed the premises under a purchase by his lessors in 1845, under two judgments and executions against William R. Skinner — one, at the instance of (192) Mather and Lecompte for $232.51, and the other at the instance of the lessors of the plaintiff for $1,388.66. The defendant also claimed the premises under a deed to him from William R. Skinner, made 26 April, 1841. It recites that the maker was indebted to James C. Skinner, the defendant, in different sums on three notes, due 1 July, 1837, 27 October, 1840, and 5 April, 1841, and amounting together to $5,142.92; and also that he was indebted upon two other notes for $337.53, each, to fall due 22 September, and 22 December, 1841, which the defendant had endorsed to other persons; and that he was indebted to six other persons, named in different sums, which fell due at several periods in 1837, 1839, 1840, and March and April, 1841, amounting in the whole to $1,990.38; all which debts, making the sum of $7,828.36, constituted the first class of debts secured by the deed. It further recites that the maker was indebted to thirteen other persons, named, in various sums, which fell due in 1839 and 1840, amounting to $3,440.35, whereof two were the debts to Mather and Lecompte and the lessors of the plaintiff, on which the sheriff sold the premises in dispute; which thirteen debts constitute the second class secured by the deed. It then conveys to the defendant 400 acres of land, whereon the maker then lived, 11 slaves, 4 horses, and small stocks of cattle, hogs and sheep, farming tools and household and kitchen furniture, upon the following trusts: That if, at the expiration of three years thereafter, any portion of the debts of the second *144 class should remain unpaid, and the trustee should be required by such a part of the creditors of the second class as should represent the greater interest, he should sell at public sale on six months' credit as much of the property as would discharge the debts of the first class and interest; and that he should in like manner sell the remaining property, if any, and with the proceeds pay the debts of the second class, if sufficient, (193) or, if not, pro rata; and that if any of the creditors whose debts are mentioned in the deed and for which the defendant was bound should require payment of his or their debts before the expiration of three years, then the trustee might at any time sell as much of the property as would satisfy such debts; and, further, that all the property conveyed should be and remain in the possession of William Skinner until it should be required for sale, according to the terms of the deed; and the trustee should not be responsible for it while the possession should thus continue.
The defendant, in further support of the issue on his part, proposed to give evidence that the deed was made bona fide to secure the debts mentioned in it, and not to delay, hinder or defeat creditors. Thereupon the counsel for the plaintiff declared that he did not impute any actual fraud to the parties, other than what appeared from the deed itself; but he insisted that the deed was upon its face fraudulent in law, no matter what the defendant might show, and that the court was bound so to pronounce. It was then agreed that a verdict should be taken for the plaintiff, subject to be set aside and a nonsuit entered, if the court should be of opinion against the plaintiff upon the question whether the deed was to be deemed fraudulent upon its face, although the defendant might be able to show that there was no fraud in fact. The court subsequently set aside the verdict and ordered a nonsuit; and the plaintiff appealed.
Although this is a singular and extremely suspicious transaction, yet the Court thinks the plaintiff gave up his case by admitting that there was no fraud in fact, and that everything might be taken in favor of the deed which (194) could show that it was bona fide. The debts were all overdue at the date of the deed, except two small ones, for which the trustee was liable and which were to fall due in the course of that year, and as to which the trustee might sell property when the creditors might require. For the residue of *145
the debts, however, there was to be no sale for three years; and after that there was to be a sale for the satisfaction of the first class of debts, not at the instance of the creditors to whom those debts were owing, but at that of the second class of creditors; and during all that time the deed stipulates that the debtor shall retain the possession. This is a very extraordinary provision, certainly; and it would seem that a jury, viewing it as men of common sense, and inferring further from the deed the probability that the maker was insolvent or greatly embarrassed, would hardly doubt upon the deed itself that it was an object of the deed to provide for the debtor. The Court has often held that when this is the purpose of a deed, or one of its purposes, it is fraudulent and void under the statute. Moore v. Collins,
Therefore the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Young v. Booe,
(197)