Brown v. Mitchell
| Decision Date | 17 May 1889 |
| Citation | 9 S.E. 702,102 N.C. 347 |
| Parties | BROWN et ux v. MITCHELL. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Hertford county; MACRAE, Judge.
Action by Brown and wife against Mitchell, sheriff, and the sureties on his official bond, for conversion of property alleged to belong to the feme plaintiff, and taken by the sheriff under an execution against the husband. After a verdict for plaintiffs, they were allowed to amend their complaint by striking out the names of all defendants except Mitchell. Judgment for plaintiffs, and defendant appeals.
An exception to the court's refusal to submit to the jury certain issues requested, and to its substitution of others cannot be sustained where the judgment can be predicated on the facts found by the jury, and it does not appear that the law applicable to any material testimony was not fairly presented to and passed on by the jury.
Winborne & Bro., for appellant.
Batchelor & Devereux and W. D. Pruden, for respondents.
When a party to an action moves in the superior court, before the end of the trial term, for a new trial on account of testimony discovered after the rendition of verdict, the motion is addressed to the sound discretion of the presiding judge; and, if he rests his refusal to grant it solely upon his discretionary power, his decision is not reviewable in the appellate court. Carson v. Dellinger, 90 N.C 226. So where a party moves for a new trial in the supreme court on the ground that he has discovered, since the expiration of the trial term below, new and material evidence, that he could have the benefit of on a future trial, the higher court exercises a purely discretionary power in passing upon the motion. We therefore deem it proper to give notice that this court will, as a rule, in future grant or refuse such motions without discussing the facts embodied in the petitions or affidavits of the moving party, as we cannot see that any good will be accomplished by contributing another to the volumes that have been written upon the exercise of legal discretion in deciding questions raised by applications for new trials. In this case, however, we find that the new testimony which the defendant proposes to offer is intended only to contradict the feme plaintiff as to her alleged declarations to the witness. The testimony in chief is not separated in the statement from that elicited by cross-examination; but it may be, and indeed it seems probable, that her testimony on that point was given in response to a question from defendant. We can readily see how, if the motion were granted and acted upon as a precedent, a majority of defendants, in cases like this, might lay the foundation for a new trial by asking one charged with being a party to a secret fraudulent conveyance to whom the witness communicated the fact that it was executed, and then proposing by some of the persons named in reply, to contradict on a future trial. The proposed new testimony as to the collection of fees for the services of the horse would be offered confessedly to contradict statements made by the husband on cross-examination. The general rule is that, when the new testimony will tend merely to contradict a witness examined on the trial, a new trial will not be granted the party wishing the benefit of it. Hil. New Trials, c. 15, § 19; 1 Grah. & W. New Trials, 498.
The defendant excepted to the refusal of the court below to submit the more numerous and specific issues tendered on his part, and the substitution of those passed upon by the jury instead of them. The judgment can be predicated upon the facts found by the jury as set forth in the record. It does not appear that the defendant was denied the opportunity to have the law applicable to any material portion of the testimony fairly presented and passed upon by the jury, through the medium of some one of the issues submitted. Emry v. Railroad Co., ante, 139. The exception cannot, therefore, be sustained.
The defendant insists that there was error in the refusal to give the instructions asked, numbered 6, 7, and 15, involving the question whether upon the evidence the court should have told the jury that there was a presumption not only that the wife had not paid bona fide for the property assigned to her by her husband, but that a transaction of the kind between husband and wife cast upon the plaintiff the burden of rebutting the presumption that it was fraudulent. The doctrine of the burden of proof, in its application to causes involving an issue of fraud, has led to their division into three classes, (Hardy v. Simpson, 13 Ired. 132:) First. When fraud appears so expressly and plainly upon the face of the deed as to be incapable of explanation by evidence dehors, (as when it is manifest from reading a conveyance that it was made and was intended to secure the ease and comfort of a debtor embarrassed with debt at the time of its execution,) there is conclusive presumption of fraud, and the court, without the intervention of a jury, declares the deed fraudulent. Second. When the law raises a presumption of fraud because of the relation of the parties to a transaction or the circumstances attending it; and if rebutting evidence is offered the issue must be left to the jury, but, in the absence of such testimony, the court acts upon the presumption, as when a person stands in certain fiduciary relations to others, such as arise out of reposing trust in his skill and integrity, the law raises a presumption in any transaction between the parties that the party in the superior position has used it to the injury of the person in the inferior position. Bigelow, Frauds, 190; Lea v. Pearce, 68 N.C. 76; McLeod v. Bullard, 84 N.C. 515; Kerr, Fraud & M. 385, 386. Among the other cases classified under this head are those in which a conveyance seems--nothing more appearing--to have been made for the ease and comfort of the debtor, but in which it is evident that some explanation might be given, and a different purpose and intent might be shown. Hardy v. Simpson, 13 Ired. 132. Third. As a general rule, where there is only evidence of such circumstances as naturally excite suspicion as to the bona fides of a transaction, the issue involving the question as to its fraudulent character should be left to the jury, with instructions that such circumstances are badges of fraud, and should be scrutinized closely in passing upon the issue. Among these badges, as enumerated by the courts, are failure to register a conveyance required by law to be registered within a reasonable time after its execution; the embarrassment of a grantor and his failure to reserve sufficient property to satisfy his indebtedness; inadequacy of price; unusual credit given by one in failing circumstances; secrecy in the execution of a conveyance; the fact that one involved in debt makes a conveyance to a near relation. Bump, Fraud. Conv. c. 4; Id. 158. The last proposition embodies the usual, but not the universal, rule, however. When a voluntary conveyance is attacked for fraud by the creditors of a donor, the burden is always upon the donee to establish the truth of circumstances that will repel the presumption of fraudulent intent, as by showing that the grantor retained other property sufficient to discharge all of his pecuniary obligations. Id. 286. The possession of the wife is also prima facie the possession of the husband, and consequently raises a presumption of ownership in him; and where the wife purchases property during coverture, whether from the husband or another, the burden is upon her to show distinctly that she paid the purchase money out of her own separate estate, not with the funds furnished by her husband. Id. 318. But this court has held that certain combinations of the several badges of fraud already mentioned will raise a presumption of fraudulent intent, and make it incumbent on the party benefited by the alleged fraud to show the bona fides of the transaction. Counsel for the defendant cited especially the cases of Reiger v. Davis, 67 N.C. 189; Tredwell v. Graham, 88 N.C. 208; and McCanless v. Flinchum, 89 N.C. 373,--in support of his position, and we propose at a later stage of this discussion to distinguish each of said cases from that at bar.
In applying some of the principles announced, we find that his honor instructed the jury as to the delivery: "Now, if the testimony satisfies you that Mrs. Brown accepted the bill of sale, and gave her husband authority to hold the property as her agent, they living together, and he using the property as hers, and for the benefit of the family, according to her direction, this would be a constructive delivery." This instruction was given just after calling attention to the testimony of the plaintiff and her husband, and plainly left the recovery of the plaintiff to depend upon the question whether their evidence should show to the satisfaction of the jury that there was a constructive delivery. The onus was thus plainly thrown upon plaintiff to prove the delivery. The instruction was correct, too, as to what constituted a constructive delivery. Benj. Sales, § 1018, and notes 1043 1044; Jenkins v. Jarrett, 70 N.C. 255; Bartlett v. Blake, 37 Me. 124. The judge also left to the jury the question whether the testimony of the husband and wife combined (there being no other evidence as to the point) had satisfied them that there was a...
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