Warren v. Makely

• Decision Date: 31 October 1881
• Court: North Carolina Supreme Court
• Parties: CLARISSA E. WARREN v. METRAH MAKELY.

85 N.C. 12

CLARISSA E. WARREN

v.METRAH MAKELY.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION to recover land tried at Fall Term, 1880, of HYDE Superior Court, before Schenck, J.

Judgment for plaintiff, appeal by defendant.

Messrs. Gilliam & Gatling, for plaintiff .

Mr. Jas. E. Moore, for defendant .

SMITH, C. J.

The plaintiff asserts title to and seeks to recover from the defendant the possession of a tract of land, designated in her complaint as “lying in Currituck township and on Smith creek adjoining the lands of L. P. Fortescue, Zacheus Gibbs and John B. Fortescue, containing one hundred acres, more or less.” In the answer the defendant admits that “he is in possession of the land described in the complaint,” and avers that “he is the owner of said land in fee.”

Upon the trial of the issue involving the plaintiff's title and right to recover, she introduced in evidence a deed of gift executed on April 26, 1870, by C. E. Slade, her aunt, conveying to her (subject to the reservation of the donor's life estate) for her natural life and with limitations in remainder to her child or children, a tract of land therein described in these words: “A piece or parcel of land lying and being in Currituck township and near the head of Smith Creek, it being the eastermost portion of the farm I purchased from my brother, John E. Fortescue, known as the Russell land, containing one hundred acres, including the buildings and the cleared land, bounded on the east by the land I purchased from Lewis B. Fortescue.”

The defendant also derived title from the said C. E. Slade under a judgment rendered against her in 1864, and a sale under execution by the sheriff and his deed made in 1872 to the defendant for the premises, and he insisted that the voluntary conveyance to the plaintiff was fraudulent and void, for that, the donor did not at the execution thereof retain property fully sufficient and available for the satisfaction of her then creditors, as required by the act of 1840.

Upon this inquiry and as a means of arriving at the value of the retained land, the defendant proposed to ask a witness the following question: What did the Porter Fortesque land, adjoining the lands of Mrs. Slade (the donor) sell for at execution sale a year or so before this sale? On objection the question was disallowed and the defendant excepts to the ruling.

The existence of the debt reduced to judgment before the making the deed of gift and subsequent insolvency of the donor, renders her deed prima facie fraudulent and void against the creditor seeking to subject the land to the payment of his debt, and equally so against the defendant purchasing under the execution issued to enforce it, unless at the time the debtor retained property, in the words of the act, “fully sufficient and available” for the satisfaction of her creditors, and the duty of proving this fact to sustain the conveyance devolved upon the plaintiff. Black v. Sanders, 1 Jones, 67; Credle v. Carrawan, 64 N. C., 422; Bump on Fraud. Conv., 286, and note citing numerous decisions in other states.

It must be then assumed that this necessary supporting proof had been offered by the plaintiff, and the rejected inquiry was intended in rebuttal and to reduce the estimated value of the retained land. The question is simple and absolute, unaccompanied with any suggestion that the two tracts possessed the same or similar qualities in soil, culture, location, or improvement, or possessed in common the elements that enter into the estimate of their respective values, or that supplementary proof would be produced that the price bid for one could in any degree measure...