51 S.E. 904 | N.C. | 1905
This action was brought to set aside a sale of land made by (201) the defendant, W. T. Hughes, under the power given in a contract between him and the plaintiffs, dated 26 April, 1902, the other defendant, M. L. T. is, having purchased the land at the sale and received a deed therefor from his co-defendant.
Plaintiffs alleged that the defendants were jointly interested in the contract containing the power, although on its face it appears to have *178 been made by them with W. T. Hughes alone, and that the sale under the power was in fact and in law conducted by W. T. Hughes, through his attorney, and the land bid in by the same attorney in the name of Davis, but really for the use and benefit of Hughes or for the joint benefit of Hughes and Davis, who were at the time co-partners in trade.
The facts necessary to be stated for an understanding of the case are these: Joseph Branch, an ancestor of the plaintiffs, other than the husbands of those who are married and the widow of Branch, was at his death the owner of the land, and after his death his heirs to whom it had descended (or some of them who had received a deed from J. M. Allen, purchaser at the administrator's sale under a prior agreement with him), conveyed it to F. S. Spruill, as trustee, to secure certain debts of Jos. Branch, and perhaps some other debts, with power of sale in case of default. Mr. Spruill sold the land in accordance with the terms of the deed of trust and W. T. Hughes became the purchaser at the price of $1,475. Plaintiffs allege that before this sale Hughes had agreed to buy the land in for them, and that the transaction should be treated either as a loan of the amount of the purchase money or as a purchase by him for them, with the right to redeem or buy it back on paying the amount of the bid and interest; but a written contract, dated March 22, 1902, was put in evidence; the substance of which was that Hughes (202) agreed to buy the land for himself with a stipulation that he would sell it to the plaintiffs for the amount of the purchase money paid by him "with a reasonable advance thereon" as a profit to himself, the total sum to be divided into three equal instalments, one of which was to be paid each year for the next three years as rent, and it was further agreed that when the three instalments were paid in full, Hughes should convey the land to the plaintiffs. There was a stipulation in the contract for a lien on the crops and a clause of forfeiture and a power of sale if default was made in the payment of any one of the instalments of rent or purchase money. It was further provided that the full agreement should be reduced to writing after the sale by Mr. Spruill, as trustee, which was then advertised for 7 April, 1902. There was also in evidence a written agreement purporting to be the one provided for in the paper writing just mentioned. It contained substantially the same stipulations, except that it fixed the amount of the purchase money at $2,115, to be divided into three equal instalments and paid as above provided. There were other terms, not necessary to be mentioned. This contract was duly acknowledged by all of the parties before the clerk. Plaintiffs alleged that they had made certain payments on the debt to Hughes, reducing the amount of it to $1,185.08. They having defaulted in the payment of the instalments according to the contract, Hughes *179
advertised and sold the land under the power and it was purchased by his co-defendant Davis. Issues were submitted to the jury and the answers thereto were as follows: 1. Hughes paid Spruill, trustee, for the land, $1,475. 2. Plaintiffs paid to Hughes in 1902 over and above supplies furnished to them by him $516.85. 3. The annual rental value of the land is $225. 4. The value of the wood cut and removed by defendants $10. 5. The land brought at the sale by Hughes under the power, 22 December, 1902, $1,692. 6. Defendants were not mutually interested in the purchase of the land at the sale of 7 April, 1902, by F. S. Spruill. 7. Defendants were not mutually interested (203) in the purchase of the land at the sale of 22 December, 1902. And (reversing the order of the last two issues). 8. Davis was represented by Mr. Ruffin, as attorney, at the sale of 22 December, 1902. 9. The said attorney did not represent Hughes at that sale. Judgment was entered for the defendants upon this verdict, and the plaintiffs excepted and appealed.
We may assume for the sake of the argument, if not for all purposes, that the written agreement between the plaintiffs and Hughes, dated 26 April, 1902, is a contract to sell or to make title upon payment of the purchase money and compliance with the other stipulations, notwithstanding that it has some of the usual terms of a lease expressed in it. Puffer v. Lucas,
Upon the sixth and seventh issues, the plaintiffs requested the court to charge the jury that they might consider the manner of keeping the accounts by defendants, it appearing that certain items paid by plaintiffs on the debt were entered on the books in the name of W. T. Hughes (205) Co., and that a receipt for rents was given to David Perry, one of the plaintiffs, in the name of the firm, and the supplies entered as furnished by the firm, which was composed of W. T. Hughes and M. L. T. Davis. This instruction, it appears, was not given in response to plaintiffs' prayer, but by referring to the charge we find that it was afterwards given by the court, and the contentions of the parties and the evidence bearing thereon fully explained to the jury. There was therefore no reversible error in refusing to give that part of the instruction embraced by the seventh prayer of plaintiffs, which related to this matter.
Before considering the remaining portion of this prayer, we will dispose of two other exceptions, as it is more convenient to treat of them in this order.
In the fourth prayer the plaintiffs requested the court to instruct the jury that the testimony of the attorney, if believed, constituted him in law, at the time of the sale of 22 December, 1902, the attorney of Hughes *181 and Davis, and for that reason the sale was void and passed no title. The testimony was to the effect that Hughes told his attorney that there would be a default, and that if there was he would sell the land. The attorney then advised him that he could not buy at his own sale, as Hughes had intimated that the land might not bring the amount of the debt and he would have to bid it in. Hughes then suggested the names of several parties who would bid, and he was told by his attorney that he could not buy directly or indirectly, and that it must be some one not interested in the sale. Hughes then said Mr. Davis had money for investment and that he would suggest to him not to let the land be sold at less than its value. The attorney then said that he could not represent him at all, but that he must go there and make the sale himself, and added that if he was expected to represent Mr. Davis, he could not conduct the sale, as he could not, being attorney for Hughes, make a bid for anybody else. He then prepared the (206) advertisement of sale, as a courtesy to Hughes, and after that became the attorney of Davis, having received a letter from the latter requesting that he act for him at this sale, limiting his bid to $1,700, and promising to remit the cash should he become the purchaser. It is not necessary to recite all the other testimony on this point. It will suffice to add that the witness further testified, in substance that he had completely severed his connection with Hughes, as his attorney, and represented Davis alone at the sale. The jury accepted this version of the transaction, as they found that the witness did not act for Hughes at the sale, but solely for Davis. There being evidence to sustain the verdict, it must be an end of the matter.
As we construe the evidence, the conduct of the attorney was perfectly correct both in law and in fact. When it appeared to him from what Hughes said that he expected him to represent him at the sale, he promptly advised him of the law on the subject, and of the impropriety of his acting in a dual capacity and representing opposing, if not conflicting interests, and immediately divested himself of all obligation to Hughes as his attorney and ceased to act for him. It was a question of fact to be determined by the jury under the proper guidance of the court. The exceptions to the refusal of the court to give the instructions contained in the fourth and fifth prayers are therefore overruled.
After the verdict had been returned, the plaintiffs requested the court to adjudge upon the verdict that the defendant Hughes had received from the plaintiffs $730.85 of unlawful and usurious interest and that judgment be entered for double that amount. This prayer was properly refused by the court. The contract of 22 March, 1902, expressly provided that Hughes should buy the land at the sale of 7 April, and sell it *182 to the plaintiffs upon the terms we have already set forth. He was to receive a reasonable advance on the amount of his bid, the total amount to be divided into three equal instalments to be paid as stipulated. Afterwards, on 26 April, 1902, the plaintiffs freely, voluntarily (207) and solemnly agreed, without any serious allegation, and certainly no issue, as to fraud or undue influence in procuring the instrument, or other equitable element to vitiate the contract, or to prevent its full operation, that they would pay $2,115 for the land, and there is evidence tending to show that they had proposed to pay Hughes $2,400 for the land, he replying to this proposal "that $2,100 and the costs was all he wanted." There is further evidence that they importuned him to buy and then sell to them, and that Hughes had at the time been offered $2,000 in cash for the land. The only question was whether the price fixed in the contract was a reasonable advance on the bid, and we do not well see how this question could be raised, as they had agreed in writing that it was, and had promised to pay it. If there was no ground upon which to assail that agreement and have it reformed and set aside, it must be binding upon them, and no equity for either reforming or cancelling the agreement has been established by the verdict. The profit realized by Hughes, even if excessive, would not amount to usury, unless it was a mere device to cover and conceal an usurious transaction. It is less difficult to decide what is usury, when there is a loan of money, than in a case like this one. Interest is the premium allowed by law for the use of money, while usury is the taking of more for its use than the law allows. It is an illegal profit. 4 Blk. Com., 156. How can we say, on the face of this transaction, that as a matter of law it is usurious I If it was a reasonable advance, it surely cannot be illegal, for it was not excessive, and even if exorbitant it must have been resorted to as a mere cloak for usury. It would therefore depend upon the intent with which the increase was exacted. Referring to a state of facts much like those in this record, Tyler on Usury, p. 92, says: "The inquiry often arises whether the transaction was a real sale in the regular course of business or a colorable sale, with intent to disguise a loan and evade the (208) statute against usury; but if the case is found to be a sale and not a loan, the courts uniformly hold that usury cannot attach, and indeed a sale can in no case be prima facie evidence of usury; for it is valid unless it be a loan in disguise, and the burden of proof lies on the party claiming it to be usury, and it is necessary for him to show the circumstances which bring it within the statute." In cases like this, the intent is the essential element of usury, and this is of course a question of fact to be decided by the jury under proper instructions from the court. In this case the unlawful intent is not found. *183
We now come to the consideration of the exception to the refusal of the court to give the latter portion of the seventh prayer, which is as follows: "The jury may consider the fact that the writings, if any, by which the land was paid for at or after both sales are presumably in possession of defendants, and would throw light on the nature of the transaction, and as tending to show that such writings, if produced, would make against the defendants on said issues," referring to the 6th and 7th. This exception has presented more difficulty than any other. The plaintiffs notified the defendants to produce the papers described in the prayer, but the notice was not served on Davis, and was served on Hughes late in the trial. If the correctness of the prayer depended upon the serving of notice, we might, perhaps, overrule the exception on account of the lateness of the time of service. But we do not think it does. The answer itself was sufficient notice to the defendants of the importance of these writings, as evidence, to them. It is the failure to introduce testimony, oral or written, which should be valuable to a party, that raises the inference against him that, if introduced, it would be detrimental to his case. The relevancy and weight of such a fact as evidence is established by one phase of the maxim omnia praesumunturcontra spoliatorem, which is said to rest upon logic, and the presumption it raises to be reinforced by our everyday experience that men do not as a rule withhold from a tribunal facts beneficial to (209) themselves. It is therefore laid down in the books as a well settled principle that where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control, and offers in lieu of their production secondary or other evidence of inferior value, there is a presumption or at least an inference that the evidence withheld, if forthcoming, would injure his case. The failure to produce on notice, merely increases the strength of the presumption or inference, or adds weight to the oral evidence, if any offered by the other side as to their contents. Some of the authorities say that the presumption does not constitute independent and substantive evidence of a fact, but we need not decide how this is. The same rule applies to the failure to call an available witness with peculiar knowledge of the fact to be established. The subject is fully and clearly treated in 16 Cyc., 1059-1065.It has been applied in our courts to the case of a litigant in a civil action who fails to appear as a witness in his own behalf and who is fixed with a knowledge of the facts. Goodman v. Sapp,
New trial.
Cited: Thackston v. Ins. Co.,