Black v. Baylees

• Decision Date: 28 February 1882
• Citation: 86 N.C. 527
• Court: North Carolina Supreme Court
• Parties: E. BLACK v. A. A. BAYLEES and others.

86 N.C. 527

E. BLACK

v.A. A. BAYLEES and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of CLEAVELAND Superior Court, before Avery, J.

The facts are as follows: The plaintiff is a judgment creditor of Benjamin Justice. He issues execution on his judgment, and the sheriff of Cleveland county returned, “No goods,” &c., and the plaintiff alleges that he is informed and believes that the defendant, Benjamin Justice, has no property liable to execution, or from which the amount due on said judgment can be made, other than his interest in the lands conveyed by him and his wife (M. J. Justice) to the defendant Baylees, and assigned by means of the transfer of the notes for the security of which it was given, to the other defendants, besides Baylees and the Justices.

The lands sought to be subjected to the plaintiff's debt, are described in the complaint, and also the return upon the execution under which the defendant M. J. Justice purchased the land at execution sale.

The plaintiff contended that the land was the property of Benjamin Justice, and by the fraud of Benjamin as agent of his wife, he contrived to have the land bought for her at sheriff's sale at a greatly reduced price, whereby the creditors of Benjamin were defrauded of their rights.

The defendants for their defence relied upon a judgment in favor of A. Williams against Benjamin Justice, regularly docketed in Cleveland county, bearing date prior to the judgment of the plaintiff, an execution, sale, and sheriff's deed for the land in dispute to Mrs. M. J. Justice, and also a mortgage on the said land executed by Benjamin Justice and wife to defendant A. A. Baylees, to secure certain notes therein mentioned, which were afterwards assigned to the other defendants.

The following issues were submitted to the jury:

1. Was the consideration of the deed executed by B. F. Logan, sheriff, to the defendant, M. J. Justice, money belonging to her husband Benjamin Justice? No. 2. Was the defendant Benjamin Justice insolvent when said deed was executed? Yes.

3. Was Benjamin Justice the agent of his wife to procure the purchase of the land in controversy at the sheriff's sale for her? Yes.

4. Did Benjamin Justice by false and fraudulent representations prevent a fair competition of bidders at the sale of the land in controversy? Yes.

5. Was John Falls the agent of M. J. Justice to purchase the land in controversy for her? Yes.

The plaintiff introduced a sheriff's deed from B. F. Logan to Mrs. M. J. Justice dated February the 9th, 1878, embracing the land in the complaint described, to show that she claimed it under her husband.

Plaintiff then offered as a witness A. R. Homesly, who testified that he was acquainted with the lands described in the complaint, and the same were embraced in the deed of the sheriff to Mrs. Justice; that he attended Cleaveland court on Monday and Tuesday of the week in which the sheriff sold the land of Benjamin Justice; that he was at said court as the agent of said plaintiff, Black, who was a creditor of Benjamin Justice, and was authorized by Black to purchase the said land for him, and that on Tuesday of the first week of the court Benjamin Justice approached him and told him that the Williams and Hamrick judgments had been arranged, and that there would be no sale, and thereby induced witness to leave, and that if witness had been present he would have bid for the land as agent for Black, and that the land did not bring its value, and was sold on the Wednesday following to satisfy said Williams and Hamrick judgments. The defendants objected to this testimony, but the objection was overruled, and the defendants excepted.

This witness further testified that the land was offered for sale on Monday and Tuesday and the sale postponed, and that it was after the postponement that Benjamin Justice told him the debt had been arranged, and the land would not be sold.

John Falls, a witness for the plaintiff, testified that he attended the sale and bid off the land, and afterwards assigned his bid to Mrs. Justice. The plaintiff then proposed to prove by this witness that Benjamin Justice, the husband of M. J. Justice, gave him the money to pay off his bid, and that this was in connection with the transaction of making the deed. There was objection by the defendants, which was overruled, and the defendants excepted. The witness testified that Benjamin Justice handed him the money (paper currency) to pay off the bid, and that Benjamin Justice was in embarrassed circumstances, and the general impression was he was failing at that time.

On cross-examination he testified that when Benjamin handed him the money he said it was his wife's money, and that she sent it by him. Witness testified that he contracted with her for some land before she was of age, or married, and paid her for it, and received a deed after she was of full age and married; that he paid her or her agent, Mrs. Hurd, forty seven dollars 80/100 dollars for the land which was the one-ninth of the land descended to her and others from her father.

This witness further testified, under objection by the defendants, that Mrs. Justice, on her examination in another action tried during the same court ( Black v. Justice, 86 N.C. 504,) testified that she sent the money paid by Benjamin Justice to him, and that it was the same money, or part of the same money received by her in 1851 from the witness for her land; that she was married when the money was paid and the title made by herself and husband; that the money was paid in silver by Falls, and that she had kept the silver in her possession, and that she sent her husband Benjamin Justice to witness to get him to buy the land for her. Witness stated that he did not see Mrs. Justice before the sale--the business in reference to buying the land was done through Benjamin Justice. He further testified that there was a “good crowd” present at the sale; that Gidney, an attorney for Benjamin Justice, said at the sale that he had a mortgage on the land which was then given in evidence, being the same mortgage referred to in the complaint, bearing date December the 4th, 1875. He further testified that the 203 acre tract if unencumbered was worth five dollars per acre.

Logan, the sheriff, testified that the money given him by Falls to pay for the land was “greenbacks.”

The defendant introduced in evidence the judgment of A. Williams against B. Justice, docketed in October, 1869, and execution and sale, &c., April 1st, 1876.

Mrs. M. J. Justice was then introduced as a witness for the defence and testified that she was the wife of Benjamin Justice; that the money paid for the land was her money, the price of her interest in land descended from her father, which she received after she was married, in the year 1850; that she then told her husband she wanted it to buy her a home, and he agreed to it; that the sum...