24 N.C. 225 | N.C. | 1842
The case is thus stated by the judge: This was an action of ejectment, brought by the lessors of the plaintiff, to recover the possession of one-third of Liberty Warehouse, a lot in the town of Milton. To sustain their action the lessors of the plaintiff produced a deed from the sheriff *161
of Caswell County which embraced, among other property, the premises in dispute. They also produced the records of two judgments, confessed in Caswell Superior Court at May Term, 1837, by one John H. Crockett, one in favor of A. C. Finley and the other in favor of Nathaniel Lea. The service of the writs upon which the judgments were confessed was acknowledged by Crockett on 11 and 12 May, and both judgments confessed in open court on the last named day, which was Friday of the term. Upon these judgments writs of fieri facias were issued, tested as of Monday of the term, under which writs the property in dispute was levied upon, sold by the sheriff, and purchased by the lessors of the plaintiff. It appeared that the judgments were confessed on the promissory notes of John H. Crockett Co., which firm consisted of (226) himself and James W. Jeffreys. The writs embraced both names, though service was accepted and judgments confessed by John H. Crockett only. It was also proved that the defendant was in possession of the premises. On the part of the defendant it was shown that on 9 May, 1837, being Tuesday of the same term, John H. Crockett, being indebted to George W. Johnston Co., of the town of Milton, in the sum of about $2,400, executed to one George Farley, for their benefit, a deed of trust embracing the premises in dispute, and all of his estate, both real and personal, which deed was duly proven and registered on the same day. A sale was made by the trustee under that deed, and the property in controversy purchased by George W. Johnston, under whom the defendant claims, and duly conveyed to him by the trustee. Both the debts to the lessors of the plaintiff and the debt to George W. Johnston were admitted to be bona fide due and owing, and the property supposed to be worth about $1,000, it being all the property belonging to Crockett. On behalf of the defendants it was contended that the judgments confessed in favor of the lessors of the plaintiff were void, first, because by Crockett's coming into court voluntarily and confessing a judgment, the consequence of which he knew was to defeat the object of the conveyance to Farley for the benefit of Johnston Co., a fraud was perpetrated on their rights, and, therefore, the judgments were vitiated. Also, that the lessors of the plaintiff or their agents, by procuring Crockett to confess the judgments for the purpose of defeating the deed to Farley, with a full knowledge that it had been executed and registered, committed a fraud on Johnston Co., and the judgments were thereby vitiated or made void. To sustain the latter position they relied upon the evidence of the sheriff, who stated that, during the week of May Term, 1837, he communicated to the lessors of the plaintiff the fact that Crockett had made the deed of trust above referred to, and that at that time James W. Jeffreys was considered wholly insolvent, having conveyed all his property in trust, and that at the instance of the lessors of the plaintiffs he procured *162
(227) Crockett to acknowledge the service of writs, which he filled up himself, and to confess the judgments as before stated; that, before this was done, he consulted with several of the attorneys in attendance on the court, to know if it could be done, so as to get the preference of the trust, and they advised it could. The court charged the jury that the plaintiff was entitled to recover, unless they believed from the evidence that the lessors Finley and Lea had combined, through their agent, the witness, with Crockett to prevent Johnston Co. from enjoying the benefit of their deed; but if they believed that the object of these parties was simply to secure their debts, although by doing so they obtained the preference over Johnston Co., then the transaction was not fraudulent, and the plaintiff was entitled to recover. There was a verdict for the plaintiff, and a motion for a new trial being overruled, the court gave judgment accordingly, from which the defendant appealed.
This action arises upon the same conveyance, judgments, and executions under which the parties claimed in Farley v. Lea,
PER CURIAM. Affirmed.
Cited: Harding v. Spivey,
(229)