34 N.C. 287 | N.C. | 1851
As the plaintiff gave no evidence that his bargainor retained property sufficient for the satisfaction of his other creditors at the time he made the deed, it would, by force of those acts of 1715 and 1840, be void as against those creditors unless founded upon an adequate valuable consideration. That position cannot be contested. But it is agreed that the debts mentioned in the deed constitute a sufficient consideration to render the deed bona fide and sustain it. So (289) they would if the plaintiff had made it appear that those debts existed, for it has been often held that deeds of trust of this kind are not invalid by reason of the nominal sum stated in them to have been paid by the trustee in order to make the instrument operative under the statute of uses, but that recourse may be had to the debts to supply the consideration necessary to the bona fides of the deed which would otherwise be deficient. It seems manifest, then, that the existence of the debts must be established, or a sufficient number of them, to satisfy the jury that the deed was not intended as a colorable security for fictitious debts, but was made to the intent of honestly securing real debts, for if the deed, instead of purporting to be a mortgage or deed of trust for the security of debts purported to be an absolute conveyance for an adequate consideration in money paid, the deed itself would not be evidence, as against purchasers or creditors, that any part of the money was paid, but the bargainee would be obliged to prove the fact aliunde. Claywell v. McGimsey,
PER CURIAM. Affirmed.
Cited: Hodges v. Lassiter