11 S.E. 470 | N.C. | 1890
Exception 1. — Plaintiff then called defendant to the witness stand, had him sworn, and proposed to elicit from him testimony tending to prove said deed, executed to him by Hinson and wife, was fraudulent and inoperative. The defendant objected on the ground that said deed, as he claimed, could not be attacked for fraud in this proceeding, but that an action against the parties to said deed, for the purpose of having it cancelled for fraud, was plaintiff's only remedy by which he could attack said deed. Objection overruled, and defendant excepted.
The witness (defendant) then proceeded to testify that he was a son-in-law of W. B. Hinson; that the deed to him was dated the day he got it; that he took possession of the land shortly after he got the (254) deed; that he was to pay $200 for the land; that he did not agree to pay more; that he gave his note to Hinson for the $200; that he has never paid anything on the note; that he gave no security for the payment of the note, nor did he give any mortgage to secure the note; that he didn't know whether or not Hinson was insolvent at the time he executed the deed to witness; that witness was never examined in supplemental proceedings taken out against Hinson; didn't know of Hinson conveying away other lands about that time to his (Hinson's) other son-in-law; didn't know whether Hinson, at the time of the conveyance to witness, retained sufficient property to pay his (Hinson's) debts; that he heard that Hinson was put in jail for refusing to testify in supplemental proceeding instituted against him; that witness at the time of said conveyance, and from then to the trial of this case, was not worth more than his homestead and personal property exemption; that witness, and wife of witness, own 148 acres of land besides the land in dispute in this case; that the deed for the 148 acres was made to witness and his wife jointly, and was partly a gift and partly a purchase; that one hundred acres was given and forty-eight bought, and witness paid $240; that Hinson conveyed this 148-acre tract to witness and his wife four or five years after witness married Hinson's daughter; that witness now owns $150 worth of personal property, and is worth about the same now that he was when the deed for the land in dispute was executed to him. Hinson was *219 considered good, or solvent, till a short time before he executed the deed to witness for the land in dispute.
Witness, on cross-examination, testified that there was no understanding between him and Hinson that he was to take the deed for the land in dispute for the purpose of keeping off Hinson's creditors; that, in his opinion, the land conveyed to him (the land in dispute) was not worth more than $200, it being in litigation or in dispute at the time it was conveyed to him. (255)
Exception 2. — The plaintiff then proposed to offer further evidence, tending to attack said deed from Hinson to Green for fraud, and the defendant objected, and assigned as the ground therefore, that the plaintiff, having introduced the defendant as his witness, could not offer evidence tending to impeach or contradict him, but was bound to accept as true and conclusive the testimony of said witness. The Court overruled the objection in part, stating his opinion of the law to be that the plaintiff was not allowed, and would not be allowed, to introduce evidence for the purpose of impeaching the defendant, but that he would allow the plaintiff to show, if he could, a different state of facts from those as testified to by the defendant. The defendant excepted. Plaintiff then introduced as a witness, J. J. Medlin, who testified that he was, and had been for a long time, acquainted with W. B. Hinson; that in the year 1881, and at the time of the execution of said deed from Hinson to Green; it was generally reported that W. B. Hinson was insolvent.
G. W. Mullis, a witness introduced by plaintiff, testified that at the time of said conveyance from Hinson to Green, the said Hinson was generally reported to be insolvent; that the defendant, J. L. Green, at the time of said conveyance, was residing, and had resided for some time prior thereto, in about a mile or one mile and a half of the said W. B. Hinson; that D. R. Pusser, J. W. Love and the said J. L. Green were the sons-in-law of said Hinson, and were such sons-in-law during the year 1881, and for some time previous thereto.
It was in evidence by the plaintiff, who was examined as a witness in his own behalf, that the tract of land in dispute, and which was sued for, contained about one hundred and twenty-five acres, and was worth $5 or $6 per acre at the time of conveyance from Hinson to Green; and one E. H. Hinson, who was likewise examined as witness for plaintiff, testified the same as G. W. Helms as to the quantity (256) and value of the land at the time of said conveyance, i. e., that there were about 125 acres of it and that it was worth $5 or $6 per acre. The witnesses Helms and E. H. Hinson both testified that in March, 1881, when said conveyance was executed, the said W. B. Hinson was generally reported to be insolvent, and was much involved in debt. *220
The witness Hinson, also testified that at the time said deed was executed, he (the witness) had a suit pending against said W. B. Hinson, in which he had sued for the recovery of $10,000, on account of alleged slanderous charges made against him by said W. B. Hinson, and that W. B. Hinson, before witness sued him, was solvent and worth $3,500 or $7,000. It was also in evidence that at the time of the execution of said conveyance to Green, one James Mullis had commenced suit against said W. B. Hinson, for the recovery of $5,000 on account of alleged slanderous charges made against said Mullis by said W. B. Hinson, and that said suit afterwards abated on account of the death of plaintiff Mullis. It was in evidence that the said suit of E. H. Hinson against said W. B. Hinson was compromised sometime after the execution of said deed from Hinson to Green. The execution dockets of the Superior Court of Union County, N.C. were introduced, showing judgments which were rendered and docketed against said W. B. Hinson after the execution of said deed to Green; one for $179.25 and interest, one for $291.15 and interest, and the other amounting to about $60 and costs, all of which were rendered on debts contracted by the said W. B. Hinson several years before he executed said deed to Green. There was evidence that the two first named of these judgments have since been paid by T. L. Love and J. W. Love, while the last named judgment was one on which an execution issued and a sale was had by the (257) Sheriff on February 6th, 1882, at which the plaintiff became the purchaser and took the deed, dated February 15th, 1882, as hereinbefore stated. The judgment and execution upon and under which said sale was had were introduced, showing Sheriff's return and allotment of exemptions to said W. B. Hinson, and that the said land in dispute in this action and which was sold by the Sheriff, was a part of the excess of the homestead allotted said Hinson. The note upon which said judgment was rendered was introduced in evidence, and was dated October 1st, 1874. It was in evidence that T. L. Love, the subscribing witness to the deed from Hinson to Green was a brother to J. W. Love, one of the sons-in-law of said W. B. Hinson. It was in evidence that the said W. B. Hinson was committed to jail for refusing to be examined in supplementary proceedings instituted upon the judgments, which were afterwards paid by said T. L. Love and J. W. Love.
Plaintiff offered in evidence further the following deeds from W. B. Hinson to his sons-in-law D. R. Pusser and J. W. Love.
Deed to D. R. Pusser, dated December 23d 1880, conveying a tract of land, and reciting a consideration of $1,000 as paid, and to J. W. Love dated February 14, 1880, conveying a tract of land, and reciting a consideration of $275 as paid; a deed to J. W. Love, dated December 24, *221 1880, conveying a tract of land, and reciting a consideration of $325 as paid; and another deed to said J. W. Love, dated 11th day of March, 1881, conveying a large body of land and reciting a consideration of $6,500 as paid.
Plaintiff closed his case, and the defendant offered in evidence the tax lists or tax returns for the years 1881 and 1882, showing the property returned by W. B. Hinson for taxation; the return for the year 1881, showing personal property to the amount of $1,060, and no realty, and the return for the year 1882, showing personal property to the amount of $1,585, and no realty. The personal property (258) returned for taxation in said years, according to the tax returns, consisted almost entirely of unspecified property. The defendant then closed his case.
The following are the issues submitted to the jury, and their answers thereto:
1. Is plaintiff the owner and entitled to the possession of the premises claimed in the amended complaint? Ans. Yes.
2. Does defendant wrongfully withhold possession thereof? Ans. Yes.
3. What damage has plaintiff sustained thereby? Ans. $2 per year.
There was a verdict for the plaintiff, and defendant moved for a new trial, and filed the following exceptions as grounds for his said motion:
Defendant's motion for new trial and exceptions in its support are as follows:
1. For that the Court erred in permitting the plaintiff to attack the deed made by W. B. Hinson to defendant for fraud, without giving notice thereof in the pleadings, and without bringing a direct proceeding for that purpose, as set forth in the first exception stated.
2. For that the Court erred in permitting the plaintiff to offer evidence tending to contradict the witness J. L. Green, whom plaintiff had put on the stand, because the plaintiff had thereby vouched for the credibility of said witness, and could not be heard to attack him; and that while plaintiff was permitted to show a different state of facts from those testified to by said witness, for the purpose of showing he was mistaken, yet that rule was not applicable here, for the matters testified to by the witness must have been true or false to his knowledge.
3. For that his Honor erred in giving the instructions asked for by the plaintiff, and refusing the 7th, 8th and 9th instruction asked for by defendant, and in modifying the 4th, 5th and 6th instructions (259) asked for by defendant.
At an early period in the judicial history of this State, it was held that courts of law might hear evidence and allow a jury to pass even incidentally upon the question, whether a deed was void for fraud in the factum or under 13th or 27th Eliz. (The Code, §§ 1545 and 1546). Logan v.Simmons,
Where land has been sold at execution sale, a party seeking to set aside the Sheriff's deed because of a fraudulent combination to prevent a fair competition among bidders, was compelled to file his bill formerly in a Court of Equity and must now allege such facts in his pleadings as are relied upon to establish the fraud. Young v. Greenlee,
The defendant asked the Court to instruct the jury that, (260) "(4) even if said deed was executed by W. B. Hinson with the actual intent to defraud his creditors, still the plaintiff cannot recover unless the plaintiff satisfies you that the defendant Green cooperated in said fraudulent intent, or had notice thereof."
The Court gave the instruction, adding the words, "unless it was a voluntary deed, and not sufficient property was retained to pay Hinson's debts." And the defendant further prayed for the charge that, "(5) even if W. B. Hinson was notoriously insolvent, and the defendant knew it at the time said deed was executed, the law raises no presumption that Green knew that Hinson intended to defraud his creditors," to which the Judge added, "It is a circumstance, however, to be weighed."
It was eminently proper that the qualifying words should have been attached by the Court in both instances. There was evidence tending to show that Hinson was embarrassed with debt, and that he did not retain property sufficient and available to discharge his indebtedness. A number of witnesses testified that he was reputed to be insolvent. The defendant Green claims under a deed from Hinson and wife, executed *223 March 20th, 1881, but proven and recorded in April, 1885. He offers the tax lists, showing that for the year 1881 W. B. Hinson returned $1,060, and for the year 1882, $1,585, consisting entirely of personal, and almost exclusively of "unspecified property." We cannot concede the correctness of counsel's position that the evidence tending to show fraud was rebutted by the return of property, the nature of which was not pointed out, and most of which, we must infer, could not have been reached by an ordinary fieri facias. There was evidence that made it proper that the Judge should modify the fourth instruction as he did. Hinson had not only disposed of all of his lands to different members of his family, at what witness said were inadequate prices, and afterwards returned for taxation property that did not appear to (261) be within the reach of the ordinary process of law to subject it for debt, but the execution of the deed when no persons but members of the family were present, as insisted, the failure to register, the great discrepancy between the recited and alleged prices, the wide difference between the aggregate amount recited as consideration in the deeds to different members of his family and the amount upon which Hinson paid taxes soon after, and other circumstances, certainly justified the argument to the jury, and would have supported a finding by them that the deed to Green was voluntary, and that in fact no money was paid by him to Hinson for the land.
The fact that the defendant Green was examined by the plaintiff as a witness, does not preclude the latter from insisting before the jury that his testimony was not, and that of witnesses who contradicted him was true, nor prevent the Judge from submitting any view of the law predicated upon that hypothesis.
The Code, § 579, abolishes the action to obtain discovery under oath, and provides that no "examination of a party shall be had on behalf of the adverse party except in the manner prescribed in this chapter." The four succeeding sections, after providing how a party may be compelled to appear and answer both before and at the trial, conclude with the provision (section 583) that "the examination of the party thus taken may be rebutted by adverse testimony." The rules prescribed in that chapter for regulating such examinations, interpreted according to their plain import and construed in connection with section 268 of TheCode, furnish a substitute equal to the old bill of discovery as a means of eliciting material facts within the peculiar knowledge of an adversary party, and which, moreover, harmonize with the general idea of the code system by obtaining the discovery and the remedy sought by the party asking it in the same action. Coates v. Wilkes,
The Judge unquestionably stated the law correctly when he told the jury that the notorious insolvency of Hinson, if admitted, as set forth in the prayer of defendant, would be a circumstance tending to show that the defendant was a participant in the fraud, and we concur in the propriety of modifying the original proposition drawn by defendant, as it was qualified by the addition made by the Court.
The declared object in enacting 13 Eliz. was to avoid and abolish "feigned gifts, grants, alienations, c., which may be contrived and devised of fraud, to the purpose and intent to delay, hinder and defraud creditors and others of their just and lawful actions and debts." So that, if Hinson had conveyed to Green in order to evade the payment of any judgment that might be recovered in an action for slander then pending against him, the deed must be treated as fraudulent in (263) so far as it affected the rights of creditors, such as the plaintiff in the execution under which G. W. Helms bought. 2 Blk., 436; 2 Atkins' Reports, 481.
The defendant asked the Court to instruct the jury that, "even though the purchase money agreed to be paid may have been less than the actual value of the land, this can raise no presumption against the defendant, for it is in proof that the land was involved in litigation, and this fact may well explain the inadequacy of price."
In lieu of this the Judge charged them: "That if the jury believe that W. B. Hinson, being much involved in debt, conveyed to his son-in-law, J. L. Green, the land in dispute at much less than its value, and the said son-in-law was himself insolvent at that time, and secured the purchase money by executing his individual note, which has not been paid, and without any further security, then the law presumes the said deed to be fraudulent, and it is incumbent upon the defendant to rebut *225 said presumption, for the law looks with suspicion upon such transactions between near relatives."
The rule laid down by Justice BOYDEN in Reiger v. Davis,
In Brown v. Mitchell,
The language used by Justice BOYDEN is not correctly reproduced in the syllabus that seems to have led to an incorrect inference in Tredwell v.Graham,
The defendant cannot demand that this Court, under a general exception to the charge, should follow him in a search for error in every part of it. We can go no further than to review the portion of the charge substituted for the special instruction asked. McKinnon v. Morrison,
There is no error. Affirmed.
Cited: Gilchrist v. Middleton,
(266)