Withrow v. . Biggerstaff

87 N.C. 176 | N.C. | 1882

The only exception taken by the plaintiff on the trial was to the admission in evidence of the deed from Jason H. Withrow to his wife, and that presents the only question for our determination.

Our opinion is the deed was improperly admitted. It was (178) irrelevant testimony and should have been excluded upon the principal of res inter alios actae. His Honor was probably controlled in his ruling by the decision in Brink v. Black, 77 N.C. 59, but that case cannot be relied upon as authority for the ruling in this case. That decision was an exception to the rule of res inter alios actae and was predicated upon the fact that the transactions were of the same character and between the same parties. There, one Van Amringe being indebted to the plaintiff and others gave to the plaintiff a mortgage on the brick-kiln in 1872, and was permitted to remain in possession of the kiln, sell the brick, and render no account of the sales; and then in 1873, when he made to the same person another mortgage on another kiln to secure a larger amount of indebtedness than he owed in 1872, this last mortgage was alleged to be fraudulent. The first mortgage was admitted in evidence, the court holding that the fact that Van Amringe was permitted to remain in possession of the property conveyed under the mortgage of 1872, being of the same character, and dealing with it and treating it as his own, was not only some evidence, but very strong evidence of an intention that the kiln of 1873 was to go in the same way as the kiln of 1872, for the enjoyment of Van Amringe in spite of his creditors.

In Holmesly v. Hogue, 47 N.C. 391, it was held that it was not competent for a creditor to establish the fraud in question, by showing that the debtor had made a fraudulent transfer of other property to another person — Chief Justice NASH saying, "that A has made an usurious contract with B, is no proof that his contract with C is usurious. Such evidence is irrelevant and mischievous, having a direct tendency to mislead the jury." Taylor on Ev., 366, 368.

Error. Venire de novo.

Cited: Loftin v. Hill, 131 N.C. 110.

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