21 S.E. 29 | N.C. | 1895
The contention of the plaintiffs' counsel upon which he mainly rested his argument was that the court below erred in refusing to charge the jury that the deed of assignment was fraudulent in law. It is like threshing over old straw to draw at length the distinctions between an assignment that is void upon its face — one, the language of which raises a presumption of fraud, and one of the third class, when, there being nothing in the instrument itself to so suggest fraud as to demand explanation, the presumption of law in favor of good (83) faith sustains the instrument till proof is offered to rebut it.Bobbitt v. Rodwell,
The language of the instrument which gives rise to the contention of *58 the plaintiff can be most safely construed by considering the connection in which it is used, and by giving weight to every word or clause that may qualify or explain it. The words upon which the plaintiff relies to sustain his view of the meaning and proper construction of the assignment will be found embodied in the following paragraph of it: "In special trust nevertheless, and to and for the uses, interest and purposes following, viz.: that the said party of the second part shall at once take possession of the property hereby assigned, and with all reasonable diligence sell and dispose of the same in such manner as he may deem most beneficial to the interest of all concerned and convert the same into money, and shall also with all convenient speed collect, get in and recover all the said debts, dues, bills, bonds, judgments, (84) mortgages, claims and demands hereby assigned, and with the proceeds of said sales and collections, that the said party of the second part shall first pay all just and reasonable expenses, costs and charges attending the drawing and due execution of this instrument, all legal and clerical services which the execution of the same may require, and the carrying into effect the trust hereby created; and to this end the party of the second part shall have authority to employ such clerks and servants as may be required to replenish by purchase the said stocks of merchandise, to pay for the same out of the said sales and collections, if the party of the second part shall deem such to be for the best interest of the creditors herein," etc.
The next question presented in the well considered and exhaustive argument of counsel was, whether the insertion in a deed of assignment of the power to replenish a stock of goods with the money arising from the sales of the property conveyed, is proof conclusive of a fraudulent intent, or, what is equivalent, of a plain purpose to hinder or delay the creditors in the collection of their claims. Authority is given to the trustee to employ clerks and servants, and to replenish by purchase, etc. (if he "shall deem such to be for the best interest of the creditors herein"), the stock of goods, and this grant of power is preceded by the qualification that it is to be exercised with a certain end in view ("and to this end"). Looking to the language that precedes these words, for an interpretation of their meaning, it is manifest that the maker of the deed has given expression not to a purpose or desire that the trustee should manage the property for the benefit, ease or comfort of the debtor, but to the wish and direction that the trust should be executed for the benefit of all, for whom the trustee should act as fiduciary, by selling the property in the way best calculated to promote their interests, and collecting and disbursing the proceeds of sale as speedily as (85) possible. Such deeds have been pronounced void in law only *59
where the debtor appeared in express terms to be providing for his own case, comfort or benefit to the possible detriment or delay of creditors. And even where prima facie the deed must be construed as reserving to the debtor some unconscionable benefit or as subjecting the creditor to some unjust hindrance or delay, if it appear upon the face of the instrument that the language of the deed is susceptible of such explanation, by evidence aliunde, as will make it consistent with good faith, it is held that the issue of fraud must be submitted to the jury to determine whether such extrinsic testimony as may be offered is sufficient to rebut the presumption of mala fides raised by the deed. Hardy v.Skinner,
The omission by the copyist of the claim of a single creditor in the copy of the deed registered in Edgecombe County falls far short of sufficiency to shift the burden of proof on the issue of fraud. At most it was only competent as a circumstance to be considered with other evidence tending to show bad faith. The burden of proof is sometimes *60
shifted in the progress of the trial, but it is only by the introduction of testimony which the law has declared to be prima facie proof of fraud but which may be rebutted by evidence deemed by the jury sufficient to explain such suspicious circumstances and thereby overcome the artificial weight that the law has attached to them as evidence. McLeod v. Bullard,
The issue of fraud was properly submitted to the jury. To have pursued any other course would have been an invasion of the province of the jury.Beasley v. Bray,
Affirmed.
Cited: Bank v. Gilmer, post, 704; Redmond v. Chandley,
(87)
