Brink v. Black
| Decision Date | 30 June 1877 |
| Citation | 77 N.C. 59 |
| Parties | EDWIN R. BRINK v. ARCHIBALD R. BLACK. |
| Court | North Carolina Supreme Court |
CIVIL ACTION removed from New Hanover and tried at Spring Term, 1877, of BRUNSWICK Superior Court, before Seymour, J.
The plaintiff claimed title to a certain kiln of brick conveyed to him by mortgage from one Stacy Van Amringe in November, 1873. The defendant as Sheriff of New Hanover County, alleging that said mortgage was fraudulent and void as against creditors, sold said brick to satisfy executions in his hands against Van Amringe. Thereupon the plaintiff brought this action to recover damages.
There was much evidence tending to show, than Van Amringe was indebted to the plaintiff and many other persons; that plaintiff had taken a mortgage on a kiln of brick in July, 1872; that Van Amringe had acted as his agent in the sale of the brick, and had remained in possession of the mortgaged property after the execution of the mortgage deed; that only a part of the proceeds of said sale was applied to the mortgage debt, and no account of the sales had been rendered to plaintiff.
The point decided in this Court is involved in the following:
Instructions prayed for; 5th. “That the fact that Van Amringe was permitted to remain in possession of the property conveyed by the mortgage of July, 1872, being of the same character, and dealing with it and treating it as his own, was some evidence of the fraudulent intent on the part of Van Amringe in the mortgage of November, 1873.”
His Honor refused to charge as requested, but told the jury:
Instructions given;“That the mortgage of 1872, was admitted for the purpose of showing there had been previous dealings and the nature of those dealings between the parties, but not otherwise as evidence of fraud in the mortgage of November, 1873; that it was much more likely that a fraud would be committed by parties who had considerable dealings, than where there was only one transaction.” Defendant excepted.
There was a verdict for plaintiff. Judgment. Appeal by defendant.
Messrs. D. L. Russell and W. S. & D. J. Devane, for plaintiff .
Messrs. A. T. & J. London, for defendant .
When a party prays for an instruction to which he is entitled, it is error to refuse it. The Judge is not required to adopt the words of the instruction; he may as a matter of taste change the phraseology, but it is error to change its sense, or so to qualify it as to weaken its force?? C. C. P., §§ 238, 239, 301.
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Norton v. North Carolina R. Co.
...at the last term of this court in Edwards v. Phifer, 121 N.C. 388, 391, 28 S.E. 548, citing Patterson v. McIver, 90 N.C. 493; Brink v. Black, 77 N.C. 59; State Hargrave, 103 N.C. 328, 9 S.E. 406. This court has repeatedly held that it is not error in the trial judge to refuse an instruction......
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Robertson v. Halton
...are so closely connected with each other, and such evidence is admissible to show fraud in the second exchange, under the rule in Brink v. Black, 77 N. C. 59, and subsequent cases approving it. Gilmer v. Hanks, 84 N. C. 317; Coble v. Huftines, 133 N. C. 422, 45 S. E. 760. A case directly in......
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Robertson v. Halton
...are so closely connected with each other, and such evidence is admissible to show fraud in the second exchange, under the rule in Brink v. Black, 77 N.C. 59, subsequent cases approving it. Gilmer v. Hanks, 84 N.C. 317; Coble v. Huffines, 133 N.C. 422, 45 S.E. 760. A case directly in point i......
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Marcom v. Durham & S.R. Co.
...given, provided, in responding to the prayer, it does not change the sense, or so qualify the instruction as to weaken its force. Brink v. Black, 77 N.C. 59; Chaffin Manufacturing Co., 135 N.C. 95 . These are rules which are observed in all appellate courts. But it is an equally well-establ......