67 N.C. 268 | N.C. | 1872
This action was to recover possession of a tract of land in Stokes Country. The plaintiff claimed the land under a judgment and execution against Richard Cox, a sheriff's sale and deed made in 1867.
Defendant claimed under the defendant in the execution, Richard Cox, by deed bearing date of 1866, and prior to the teste of the execution and sale by the sheriff to plaintiff.
There was no difficulty as to the identity of the land, or defendant's possession. Plaintiff introduced evidence to show that the purchase by the defendant was fraudulent and void as to creditors. Many witnesses were examined as to the point. Defendant in reply examined testimony to show thebona fides of his purchase, and among other things proposed to ask a witness this question. "Whether Cox did no confess, in 1861 or 1862, an indebtedness to defendant of some $900."
This question was objected to, and ruled out by the Court. Defendant excepted. There were other rulings of his Honor excepted to, but as this is the only one discussed by the court it is unnecessary to state the exceptions. Under instructions from the Court to which no exceptions were taken, there was a verdict for the plaintiff. Judgment and appeal by the defendant. In this case, numerous objections were taken to the ruling of his Honor, but as one objection disposes of the case in this court, we deem it unnecessary to notice any of the remaining questions.
In this case both parties claimed under Richard Cox, the plaintiff under a sale by the sheriff under an execution; the defendant under a deed of bargain and sale, from said Cox, to defendant, made prior to the teste of the execution under which the plaintiff purchased; and one of the questions in the trial was, as to the bona fides of the sale of the defendant. To show the bona fides of the sale to the defendant, and that a full and fair price was paid for the land, the defendant proposed to prove, by a witness, a confession of Cox, under whom both parties claimed, made several years before the commencement of this suit, and before the sale by the sheriff and the purchase by the defendant, of an indebtedness to the defendant of some nine hundred dollars. To the reception of this evidence the plaintiff objected, and it was rejected by his Honor. In this there was error. Pattonv. Dyke,
In this last case, the party, to show the bona fides, and that he had paid a fair price, set up a large debt owing by the vendee, former owner of the property, to the defendant; and to rebut this evidence, the plaintiff was permitted to prove that the said vendee, before the sale, had said that he was not embarrassed, and did not owe more than $250. It follows from this authority, that if the plaintiff in that case could prove that the vendee said he was not embarrassed and owed but $250, then in our case the grantee could prove, that his grantor admitted that he owed the defendant some $900. But the case of Pearce v. Jenkins is still more to the point, as in that case the evidence admitted, and which this Court approved, was almost identical with that rejected in this case.
PER CURIAM. Venire de novo.
Cited: Smith v. Moore,
(271)