44 N.C. 105 | N.C. | 1852
Joseph Satterwhite, the brother-in-law of the plaintiff, conveyed the slaves to him for the alleged price of $1,200. This deed was attested by Thomas Satterwhite, another brother-in-law. The plaintiff proved by the attesting witness, that he was sent for to the house of the plaintiff, where he found Joseph, who said that he was smartly indebted to *112 John, and was about to sell him the two Negroes in dispute. After the deed was executed, it was proposed by the plaintiff to Joseph (106) to have a settlement, and the former went to his desk and took out a paper or papers, and asked the latter if he had that little paper he gave him some time ago, who replied that he had not — it was at home; and John then proposed to go to Joseph's house to make the settlement, and the witness, Thomas, was asked to go with them to witness the settlement, but did not go. The plaintiff then gave in evidence four several bonds, executed by Joseph to him at different times, for sums amounting in the whole to $1,578.
At the time of the execution of the bill of sale, Joseph was largely indebted beyond his means to pay, and a writ had issued against him for the collection of one of his debts, which was prosecuted to judgment; upon which an execution was levied on the Negroes in question, and at the sheriff's sale, the defendant bought them and took them into possession. On the part of the defendant, it was alleged that the bill of sale was intended to defraud the creditors of Joseph. That if Joseph owed the plaintiff anything, it was a very small sum, and the bonds offered in evidence were without consideration.
The defendant offered to prove that Joseph, before the execution of the bill of sale, had said he was not embarrassed, and did not owe, of his own debts, more than $250: This evidence was objected to by the plaintiff, but admitted by his Honor. Evidence was also given by the plaintiff, tending to prove that the bonds were given for debts bona fide due; and by the defendants, to show that they were given for fictitious demands. His Honor, the presiding judge, was asked by the plaintiff's counsel to charge the jury, that the proof of the execution of the bill of sale, and that the parties thereto said it was made in consideration of Joseph's indebtedness to the plaintiff, and the further proof of the execution of the bonds, did, if the jury believed the evidence, make out a prima facie case for the plaintiff, and put the burden on the defendant to show the transaction to be fraudulent. This instruction his Honor refused, and charged the jury that as the parties to the bill of sale were brothers-in-law, and the bonds without a subscribing witness, and their existence unknown to any one except the parties, until they were produced on the first trial of this case, something more than the mere production and proof of the bonds was necessary to constitute (107) a prima facie good consideration, as against a purchaser at execution sale. His Honor further charged the jury, that if they were satisfied from all the testimony, that the sale from Joseph Satterwhite to the plaintiff was a bona fide transaction, they should find for the plaintiff — otherwise, for the defendant. There was a verdict *113
for the defendant, and a rule for a new trial, for the admission of improper testimony, and for misdirection; and the rule being discharged, and judgment rendered on the verdict, the plaintiff appealed.
The first objection raised in the plaintiff's bill of exceptions is to the reception of the ante-declarations of Joseph Satterwhite. His Honor committed no error in this particular. It is a general principle in the law of evidence, that any fact to be proved against a party ought to be proved in his presence, by the testimony of witnesses duly sworn or qualified to tell the truth. Hearsay, therefore, is not admitted in our courts of justice, because it is but a statement which a witness gives, of what he professes to have heard a third person say. This rule is as old as the common law. To it, however, there are exceptions coeval with it: Such, for instance, of dying declarations, pedigree, and others, stated by writers on the law of evidence. Among the more modern exceptions, is that class of hearsay admissible upon the sole ground that it proceeds from the persons owning the property at the time, and would be evidence against him if he were a party to the suit. His estate or interest in the property, coming to another by any kind of transfer, the successor is said to claim under the former owner, and whatever he may have said concerning his own rights while owner, is evidence against his successor. Phil. Ev., Vol. 1, note — 1st part, p. 644. This rule applies equally to real and personal property, whether in possession or in action. Thus, the admissions or declarations of a vendor or holder of personal property, made while so holding it, is evidence of all claiming under him, either mediately or immediately. In detinue for slaves, the declarations of the defendant's vendor, made before (108) the sale, was held admissible. Walthall v. Johnson, 2 Call., 275. In Johnson v. Patterson,
The second exception is the refusal of the judge to charge, as required by the plaintiff. It is true that in ordinary cases, he who alleges fraud must prove it. The burthen does lie upon him, but it does not extend to such a case as this — where, by the statement, as made by the plaintiff, fraud attaches to the transaction. Both Joseph and John Satterwhite and the subscribing witness were brothers-in-law; Joseph was indebted beyond his power to pay; a writ had issued against him to recover a debt due from him. Under these circumstances, he sells, or pretends to sell, to the plaintiff the slaves in dispute, and in order to sustain the sale, alleges he was smartly indebted to him, and produces four several bonds bearing different dates, one in 1843, one in 1845, one in (109) 1847, and one in 1848, amounting in the whole to upwards of $1,400. The bonds were not attested by any witness. In the case of Hawkins v. Alston,
The remaining exception is that, in his charge, his Honor intimated to the jury an opinion upon a matter of fact. We are informed that this objection is founded on that part of the charge, in which the judge *115 uses this language: "And the bonds without a subscribing witness, and their existence unknown to any one (but the parties) until they were produced on the first trial of this cause." It is objected, that the judge violated the act of Assembly, in stating that the existence of the bonds was unknown, until produced on the trial. It is manifest that his Honor spoke of the case as it appeared before him. Now there was no evidence that the bonds were ever seen, until produced in evidence on the trial of the cause. The expressions used, then, were tantamount to telling the jury that there was no evidence of the fact of their ever having been seen, until the trial. Whenever a point arises on the trial of a cause, which it is important to either party to sustain, and there is no evidence offered upon it, it is not only no error in the judge so to inform the jury, but it is his duty. Situated as the case was, it was very important to the plaintiff to prove that there was a settlement, and that these bonds had an existence before it took place. No settlement was proved. The fact that after the deed was executed, the plaintiff went to his desk and took out some paper or papers, was no evidence that the (110) bonds were the papers. If they were, why were they not exhibited? The fraud attempted is too palpable, and not reconcilable with any pretense of fairness. We concur with his Honor on all the points ruled by him.
PER CURIAM. Judgment affirmed.
Cited: Barnawell v. Threadgill,