33 N.C. 339 | N.C. | 1850
This is trover for a slave, Lucinda, and her children, and was tried on the general issue. Both parties claimed under one Benjamin Ratcliff: the defendant as a purchaser at a sale under execution and the plaintiff under a conveyance to his wife, who was a daughter of Ratcliff. The question was whether the deed to the daughter was bona fide, or fraudulent against the father's creditors.
The plaintiff produced the bill of sale to his wife, dated in March, 1835, and proved its execution by the subscribing witness, who was a son of Benjamin Ratcliff. It purported (340) to have been made in consideration of $400 then paid, and was proved and registered in July, 1847. The witness further deposed that no money was paid, and that no person was present at the time but the members of the family; and that the father said that he made the deed with a view to a division of his slaves among his children. Further to support the issue on his part, the plaintiff produced as a witness the said Benjamin Ratcliff, and he deposed that he executed the said bill of sale at the time it bears date, and then delivered it and the said slave, Lucinda, to his daughter, who was then married to "the plaintiff and lived about a mile from the witness; that the said Lucinda was then about six years old, and was not sold by him, but was intended as a gift to his daughter, and that she was not taken away by the daughter, but left by her to wait *248 upon her mother, the wife of the witness, who was then sickly; that at that time he owned a negro man and three other negro girls, two of whom were older than Lucinda, and also owned a tracts of land of the value of $2,000, a wagon and team and other stock, and did not owe as much as $50, and that there was no fraud in his gift to his daughter; that in 1838 and 1839 he became involved in debt as surety for the subscribing witness to the deed and another son; that therefor the judgments were obtained under which the defendant purchased, and that in 1839 and in 1840 he conveyed all his property to his children; that he continued in possession of said Lucinda up to 1843, and that in that year the plaintiff hired her to James Ratcliff, a son of the witness, who lived with him, and they worked the plantation on which the witness resided; and that during that year the sheriff came to his house with executions on said judgment, (341) to levy on that slave and the others, and they were kept out of the way there about a week, and then Lucinda went into the possession of the plaintiff, who also kept her out of the way of the sheriff, and held her until she was taken under the executions in 1847, and that during that period she had the two children."
On the part of the defendant the judgments and executions under which he purchased were produced, and evidence was further given by several persons that they had long resided near Ratcliff and the plaintiff, and that Ratcliff paid the taxes on the said Lucinda and claimed her as his own until the sheriff endeavored to levy on her in 1843, and that they were in the habit of conversing with him about his property, and, before that time, had never heard, from him nor from any other person, of a conveyance or transfer of Lucinda to the plaintiff's wife. The defendant then offered to prove by a witness that in 1842 a son of the said Ratcliff applied to the witness on behalf of his father to become his surety for an appeal from the County to the Superior Court upon one of the said judgments, and informed the witness that as a security to him his father said he would execute a deed of trust for his negroes; that he, the witness, declined doing so, but went with the son to the said Ratcliff's house, and there the father asked the son "whether he, the witness, had agreed to go into the arrangement," and the son replied thereto, "he had not," and that then the said Ratcliff's the father, said to the witness, "There is no danger." The testimony thus offered was objected to on the part of the plaintiff, but was admitted.
In summing up the case to the jury the presiding judge instructed them that when a person makes such a conveyance of *249 a negro as that made by Ratcliff in this case, and then continues in possession for eight years, using and claiming the slave as his own, there is such a repugnance between the transfer and possession as raises as presumption of a secret trust for the donor, which is fraudulent, and also that, (342) unless such possession be accounted for satisfactorily to the jury, the impression of fraud remains on the transaction; and then left it to the jury to say how far that presumption of fraud was repelled in this case. The counsel for the plaintiff then moved the court further to instruct the jury that if the testimony of the witness, Benjamin Ratcliff, was believed by them, they ought to find for the plaintiff, and the instruction was given as asked.
The jury found for the defendant, and the plaintiff appealed from the judgment.
The objection to the evidence is not well founded. The acts and declarations of the father, while in possession of the slave, as to the nature of his possession and claim of title, are evidences on those points, though they occurred after his conveyance to his daughter. Askew v. Reynolds,
Of the instructions to the jury the plaintiff, in the opinion of the Court, has no cause to complain. They are, of course, to be understood in reference to the facts of the case. They are, that a conveyance of a negro child of six years of age, supposing its date to be true, was made by a father to a daughter living within a mile of him, without any valuable consideration, though purporting to be for the large price of $400, and was followed by the continued possession of the father for eight years afterwards, and by his contracting large debts and making voluntary conveyances to his children of all his other property in three or four years after its execution, the father, during that period, using and claiming and offering to convey the negro as his own, and the conveyance to the daughter being, for the whole eight years, not only unregistered, but concealed, so as to be unknown to the nearest neighbors and most intimate friends. Certainly, under those facts the transaction is presented to our consideration in a most questionable shape, and a strong presumption of fact arises that it was not fair, but merely colorable, and therefore ought not to stand in prejudice to the debts contracted by the father on the faith of that property. That was not seriously resisted in the argument, but it was said that the presumption was purely one of fact, and therefore that it was the province of the jury, exclusively, to consider of its weight and it was erroneous in his Honor to make any observations on it. But that is not the law, as it (344) seems to the Court. There have been so many cases in this State involving this doctrine, and it has been so frequently and so fully discussed here, as to make it unnecessary now to look beyond our own decisions for authority on it. As was said inGregory v. Perkins,
PER CURIAM. Judgment affirmed.
Cited: Marsh v. Hampton,