Black v. Justice

• Decision Date: 28 February 1882
• Citation: 86 N.C. 504
• Court: North Carolina Supreme Court
• Parties: E. BLACK v. BENJAMIN JUSTICE and wife.

86 N.C. 504

E. BLACK

v.BENJAMIN JUSTICE and wife.

Supreme Court of North Carolina.

February Term, 1882.

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

The following issues were submitted to the jury:

1. Was the purchase money paid as the consideration for the deed executed by sheriff Logan to the feme defendant Mahala J. Justice, the money of the defendant Benjamin Justice?

2. Did Benjamin Justice cause said deed to be executed to the defendant M. J. Justice with intent to defraud his creditors?

3. Did the said M. J. Justice by false and fraudulent representation made by her agent prevent a fair competition of bidders, and thereby cause the land to sell for less than its value?

The plaintiff offered in evidence the transcript of a judgment from the judgment docket of the superior court of Gaston county, rendered in favor of the plaintiff against the defendant Benjamin Justice for the sum of $682.08, with interest on $671 from the 13th day of November, 1876, the date of the rendition of the judgment.

He offered a deed from the sheriff of Cleaveland county covering the land in dispute, dated the 3rd of February, 1879, which recited the execution upon the aforesaid judgment, the sale thereunder on the 3rd of February, 1879, and that E. Black was the highest bidder.

The admission of this deed in evidence was objected to by the defendant because it had not been properly admitted to probate. The deed had no subscribing witness, and its execution was proved before the probate judge of the county of Cleaveland by the oath of J. W. Gidney, who swore that he was well acquainted with the hand-writing of B. F. Logan (the sheriff), having often seen him write, and that his signature to the deed was in his own proper hand-writing. The objection was overruled and the defendant excepted.

The plaintiff then offered in evidence a deed conveying the same land from the sheriff to the feme defendant, dated February 9th, 1878, to show that both parties claimed from the same source.

The plaintiff also introduced John Falls, who testified that on the 6th of February, 1878, (the sale under which the defendant claimed,) he bid off the land at sheriff's sale; that Benjamin Justice, the defendant, came to him and told him that the land was about to be sold, and asked the witness if he would bid it off for his wife and let her have it; and that if the witness would bid off the land, pay for it, and convey it to his wife, he would give him $200. The land was sold and he bid it off, and during the same week, being court week, the defendant came to him and said he had money from his wife and wanted to pay for the land; that the witness paid the money handed to him by the defendant, who said it was his wife's money, and he transferred his bid to the wife and the sheriff made the deed to her. Benjamin Justice told witness that this money came from the proceeds of a tract of land that witness bought from his wife. Witness also testified that he bought the wife's interest in her mother's land before the wife was of age, or married, and the deed was executed to him by Benjamin Justice and his wife after her marriage and full age; that he paid her $47.50 for the land about February, 1851; the land bid off at sheriff's sale brought $26.00; and that Benjamin Justice was then in critical or failing circumstances and embarrassed with debt. He further testified that there was a large crowd of people present at the sale, and that the land is now worth $6.00 or $7.00 per acre, and at the sale was worth $5.00 per acre unencumbered.

A. R. Homesly, a witness offered by the plaintiff, testified that the sale did not come off Monday or Tuesday; that he was there as agent of the plaintiff to buy for him; that on Tuesday the defendant, Benjamin, told him that the land would not be sold; that he had it all arranged. The land is worth $10.00 per acre, and would have brought at a fair sheriff's sale $5.00 per acre.

Logan, the sheriff of the county, was then introduced by the plaintiff and testified, that the sale was for some cause postponed until Wednesday, and the land sold on that day; that sales are frequently postponed from day to day; that J. W. Gidney announced at the sale that there was a mortgage on the land, and thinks that Gidney was counsel for Justice, and that it was ““greenback” money that Falls paid him for the land.

The defendant, Mrs. Justice, introduced two judgments--one in favor of A. Williams, docketed April 6th, 1876, and the other in favor of G. M. Green, administrator, docketed December 2nd, 1869, both against Benjamin Justice.

The defendant proposed to offer in evidence a mortgage deed upon the land, of prior lien to plaintiff's and defendant's judgments, to show that the land was encumbered; and in answer to the testimony of the plaintiff that the land brought less than its value when Mrs. Justice bought, and also to show that plaintiff bought nothing at sheriff's sale. The deed was admitted for the first purpose, but rejected for the second purpose.

The mortgage was then introduced for the first purpose, and was a deed from B. Justice and wife to J. Jenkins and H. D. Lee, dated 12th January, 1875, and registered 10th February, 1878.

H. D. Lee, witness for defendant, swore that the note secured by the mortgage was given January 12th, 1878, and that divers payments had been made thereon, from October, 1875, to 22d February, 1877, and that there is still due on it about $450.00??

Mahala J. Justice, the feme defendant, was then introduced on her own behalf and testified that having understood that the land had been advertised for sale, she requested her husband to ask Mr. Falls to bid it off, if she had money enough to pay for it. He told her afterwards what it came to, and she gave him $26.50 to pay Mr. Falls; that she got the money (silver) from Mr. Falls for her land soon after she married; that he paid her near fifty dollars and she kept that money from that time; and that she was married in 1850, and now lives on the homestead adjoining that place.

At the request of the plaintiff the court gave the following instructions to the jury:

1. That if it is conceded, or the jury find, that the purchase was made when the husband was embarrassed with debt, when it is admitted that the purchase was made during coverture, the burden is upon her to prove distinctly that she paid for the land purchased with funds that were not furnished by the husband.

2. That if Benjamin Justice and M. J. Justice sold her land in 1851 (being then married) and received the money, that the money vested in the husband as his property.

3. If the money paid as a consideration for the deed to M. J. Justice was Benjamin Justice's money, then the sale would be fraudulent as to creditors.

4. That if Benjamin Justice, as his wife's agent, represented to A. R. Homesly, the agent of Black, that the debt was arranged and that there would be no sale, when such was not the fact, with the intent to get rid of Homesly as a competing bidder, and Homesly was misled by this false representation, and prevented from attending the sale, and did not attend the sale, then this sale is void as to creditors.

5. That even if Mrs. Justice paid her money for the land, yet if there was a fraudulent combination between her and her husband, he being embarrassed, to have the land sold for less than its value, in order that he might derive advantage therefrom, and they did procure it to be sold, it is void as to creditors.

6. That if the jury believe the testimony of Mrs. Justice, the money given to her husband to buy this land was the money and property of Benjamin Justice.

7. That it was incumbent on defendants to prove that the mortgage to Lee covered this land, and it was their duty to satisfy them of this fact.

The defendant asked for the following instructions:

1. If the money was derived from the wife's real estate and was kept by her separate and apart from the husband, and was used by him with her assent in the purchase of this land at execution sale, the money then became impressed with the character and properties of land and her title is good.

2. Upon the pleadings and evidence in the case the plaintiff cannot recover judgment for the land.

3. No fraud or combination on the part of the husband to suppress bidding, not participated in by the wife, makes the deed of the sheriff void as to her.

4. Benjamin Justice was the agent of the wife only to bring the money to Falls.

The court refused the first and second instructions as...