116 N.C. 78 | N.C. | 1895
The contention of the plaintiffs’ counsel upon which he mainly vested 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 language of the instrument which gives rise to the contention of 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
The next question presented in the well considered and exhaustive argument of couusel, 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 trastee 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 calcu-
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 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, 84 N. C., 515; Lee v. Pearce, 68 N. C., 77.
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, 98 N. C., 266.
There was no error and the judgment is affirmed.
Affirmed.