116 N.C. 684 | N.C. | 1895
The exception to the Judge’s remarks to the jury are without merit. Almost the same expressions were used in Osborne v. Wilkes, 108 N. C., 651, and were found unobjectionable on appeal, citing Hannon v. Grizzard, 89 N. C., 115. Nor was there error in continuing the Term to conclude the trial or to receive the verdict. This is authorized as to felonies by The Code, Sec. 1229 (State v. Adair, 66 N. C., 298) and was extended to all other cases by Chapter 226, Acts 1893, except that it would
But if the testimony offered for the plaintiffs was believed by the jury, there were a number of badges of fraud which can scarcely be accurately described except by so denominating them, though they are sometimes designated as circumstances calculated to excite suspicion and challenge scrutiny in order to ascertain whether a conveyance was executed with fraudulent intent. Among the evidences of fraud relied upon by the plaintiffs were the following : 1. That Gilmer owed a debt when he sold the goods; 2. That he sold on a credit of 6, 12, 18 and 24 months; 3. That the purchaser was not worth over $500; 4. The, purchaser gave his note without security ; 5. Gilmer was embarrassed with debt; 6. Though not then insolvent, his embarrassment soon after resulted in insolvency; 7. The sale was to a son.
In Beasly v. Bray, 98 N. C., 266, the Court held that an absolute conveyance by an insolvent debtor to an insolvent vendee, who was not fixed with a fraudulent intent, even upon a long credit and without security, was merely evidence of fraud to be considered by the jury. It will be observed that in Beasley’s case it was admitted that the debtor was not only embarrassed with debt but was actually insolvent. If in this case it had been admitted that the elder Gilmer was insolvent and conveyed to a son for an insufficient consideration, such a combination of circumstances would have raised a presumption of fraud. “ But father and son may deal with each other in good faith just as others not so related may do.” Banking Co. v. Whitaker, 110 N. C., 345.
Had the conveyance been made by an insolvent husband to his wife, the burden would have rested upon those who claimed under it to rebut the presumption of fraud raised by those circumstances. Peeler v. Peeler, 109 N. C., 628; Browne v. Mitchell, 102 N. C., 347.
This Court has recently held that mere inadequacy of price, however gross and whether considered alone or in connection with other suspicious badges, was only a circumstance tending to prove fraud. Berry v. Hall, 105 N. C., 154; Orrender v. Chaffin, 109 N. C., 422. In Berry v. Hall, supra, following Ferrall v. Broadway, 95 N. C., 551, the Court held that a trial Judge “was not at liberty to say to the jury that any fact proved or admitted, that does not in law raise a presumption of the truth of the allegation of fraud, is a strong circumstance tending to establish it.” In the same opinion, referring to the reasons assigned by the Judges when acting as chancellors and passing upon the facts, the Court said: “ The reasons assigned in these opinions for giving more or less weight- to any testimony were not intended to be, and cannot, without invading the province of the jury by violating The Code, Section 413, be adopted as rules to be laid down in the charge of the Court for their guidance.”
But I can imagine nothing that could introduce greater uncertainty into the law than the proposition that some indefinite combinations of the hundreds of circumstances which are deemed sufficient to throw suspicion upon a business transaction, will hereafter be held to raise a presumption of fraud. In the case at bar, we have eight suspicious circumstances grouped together, and it is proposed to declare them sufficient, as a rule of evidence, to amount to primeo facie proof of fraud. Suppose we take these eight badges of fraud and a dozen additional ones, making twenty in all, that have never been heretofore held to be more than suspicious circumstances challenging
Upon the testimony tending to prove all these suspicious circumstances, however, the duty devolved'upon the Court, in view of the requests made by counsel, to speak of them, not as evidential facts bearing upon the issue, but as badges of fraud to be considered by the jury in passing upon the issue involving the fraud. The prayers in which the plaintiffs asked the Court to tell the jury that certain evidence, if believed, raised a presumption of a fraudulent intent in the execution of the deed were properly refused by the Court, but they demanded, in lieu of what was asked, some more specific instruction to the jury in order to enable them to comprehend the bearing of the circumstances proved, upon their findings. Parties who seek to set aside deeds are required not only to allege the existence of facts which constitute fraud, but to prove what they allege. Where a plaintiff charges the fraud according to the prescribed practice, and an issue, involving it, is framed and submitted, he has a right to insist that circumstances, which his testimony tends to prove and which the law denominates badges of fraud, shall be so called, and that scrutiny upon, the part of the jury shall be invited by bestowing upon them their proper designation. Whenever a charge is excepted to, and it appears to the Court that it was calculated to mislead instead of enlightening the jury, a new trial should be granted. It would have necessitated the presence of a jury of lawyers in the box in order to comprehend fully what was the fact in issue, and the evidential facts tending to support the affirmative or the negative view of the propo
It was error in lieu thereof to recite these admitted facts and the explanatory evidence offered by the defendants and merely instruct the jury “The question is whether these facts are true and then whether from the whole evidence you infer the existence or non-existence of the fact in issue, remembering that on the whole case the burden of proof is on the plaintiffs.” Nowhere in the charge is there an instruction that any of the facts proven or admitted was a badge of fraud and that evidence explanatory of such badge “must be scrutinized with care.”
The Act of T893, Ch. 453, does not prohibit bona fide mortgages to secure one or more pre-existing debts but when as here, a mortgage is made of the entirety of a large estate for a pre-existing debt, omitting only an insignificant remnant of property, such mortgage is in effect an assignment for the benefit of the creditors secured therein. To hold otherwise would be in effect to nullify the act. The Court erred therefore, after the grantor’s admission of the above fact, in refusing to grant the plaintiff’s motion to declare the deed of trust void as inconsistent with the Act of 1893 regulating assignments and deeds of trust, and void on the admitted fact that the grantor had not complied with the said act.
Chapter 453, Acts 1893, is not a mere recommendation from the Legislature to insolvents as to the form of assignments and proceedings thereunder, but in its very nature the Act is imperative. If not complied with by the assignor by filing schedule as required, the assignment is invalid. The fact that the failure to’ observe any of its provisions makes the assignee indictable, of itself indicates that the requirements of the act are mandatory. The assignor is not indictable. The assignment is simply invalid