Clement v. Cozart
| Decision Date | 04 April 1893 |
| Parties | CLEMENT v. COZART et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Granville county; H. G. Connor, Judge.
Action by Thomas D. Clement, as administrator of Amos Gooch deceased, on behalf of himself, as such administrator, and all other creditors of James C. Cozart, deceased, who might come in and make themselves parties, against W. W. Cozart administrator, and the heirs at law and grantees of said James C. Cozart, deceased, to compel the administrator to sell the real estate of deceased for assets to pay his debts. Judgment for defendants. Plaintiff appeals. Reversed.
Plaintiff tendered the following issues, to be submitted to the jury which was in each case refused: (1) Did the defendants D. C Lunsford and Thomas G. Cozart pay to James C. Cozart, now deceased, the sum of $2,000 for the land mentioned and described in the deed dated 21st November, 1871? (2) Was the said deed a voluntary deed? (3) Was the said James C. Cozart, now deceased, indebted at the time said deed bears date, to wit, 21st November, 1871? (4) Was the said James C. Cozart, now deceased, insolvent at the date of said deed,--21st November, 1871? (5) Was the said James C. Cozart, now deceased, indebted to an amount equal to the value of his property when the said deed was executed,--21st November, 1871? (6) Was said deed, dated 21st November, 1871, executed by said James C. Cozart, now deceased, with intent to defraud his creditors? (7) Was the said deed, dated 21st of November, 1871, executed upon a secret trust to enable the said James C. Cozart, now deceased, to use and enjoy the said land as his property? (8) Did the said James C. Cozart, now deceased, continue in the possession of said land and have control thereof by himself, and other persons under him, from the time of the execution of said deed of 21st November, 1871, up to the time of his death? (9) Was the said deed fraudulent as against Amos Gooch, the intestate of the plaintiff in this action?
In an action in the form of a creditors' bill to set aside a conveyance as fraudulent, brought by one who became a creditor after the conveyance, the complaint alleged that at the time of the conveyance the grantor was insolvent, that the deed was executed with intent to hinder, delay, and defraud existing and subsequent creditors, and that the conveyance was voluntary, and on some secret trust for the benefit of the grantor. There was evidence tending to show that the deed was to grantor's children, that it was secretly made, and the registration thereof long delayed, and that the grantor remained in possession all his life, exercising acts of ownership. Held, that the submission to the jury of the single issue whether the deed was made with intent to hinder, delay, or defraud plaintiff unduly limited the inquiry to whether there was a present intent in the grantor's mind, at the time of the execution of the deed, to defraud plaintiff, while such special inquiry would not be necessary in case the jury were satisfied there was a secret trust and a continuing fraud, evidenced by a remaining in possession and other acts.
Batchelor & Devereux, for appellant.
J. W. Graham, for appellee.
Was the one issue submitted by the court such that the appellant was not denied an opportunity to have the law applicable to any material portions of the testimony fairly presented and passed upon by the jury, it being settled that beyond this rule there is no limit to the discretion of the presiding judge in settling issues? Denmark v. Railroad Co., 107 N.C. 185, 12 S.E. Rep. 54. The main point in this case was whether the deed was fraudulent as to subsequent creditors, as well as to creditors existing at the time of its execution, if it were indeed fraudulent as to the latter class. The plaintiff's intestate was a subsequent creditor. The issues which arose upon the allegations of the complaint as to the death of plaintiff's intestate and the appointment of plaintiff as administrator, and the denial of knowledge by defendants, as appear by articles 1 and 2 of the complaint and article 1 of the answer, were not mentioned, and we presume were not insisted upon by defendants. His honor submitted but one issue: Was the deed executed by James C. Cozart to D. C. Lunsford and Thomas G. Cozart, dated November 21, 1871, made with intent to hinder, delay, or defraud Amos Gooch? We by no means hold that his honor was required to submit the issues presented by plaintiff's counsel, although, if he had deemed best to have submitted issues upon several facts alleged and denied, in order to bring the principal question the more clearly before the jury, or in order to enable the court, upon the ascertainment of facts by the jury, to declare the law, he might have done so. The decisions are becoming quite numerous on this subject. The question, what are the material issues? arises in each case. We refer to Braswell v. Johnston, 108 N.C. 150, 12 S.E. Rep. 911, and to Clark's Code, § 393. The execution of the deed was admitted. The complaint alleged that at the time of its execution the grantor, J. C. Cozart, was insolvent, greatly indebted beyond his ability to pay, and that the deed was executed with intent to hinder, delay, and defraud the then and all subsequent creditors of said J. C. Cozart, and that the grantees and their alleged cestuis que trustent had notice thereof. It alleged the indebtedness of said J. C. Cozart with other persons upon a bond to plaintiff's intestate, the judgment thereon, and a partial payment, and that a large part thereof is still due and unpaid. It charged that said deed was made upon some secret trust for the use and benefit of the grantees; that no part of the recited consideration had ever been paid, nor was ever intended to be paid; and averred that the said deed was intended to be a voluntary conveyance. It further alleged the death of said J. C. Cozart, the administration by one of the defendants, the want of personal assets, the necessity of a sale of the lands of intestate to pay his debts, the conveyance by D. C. Lunsford and Thomas G. Cozart, the grantees in the deed above named, of the lands described therein, for the recited consideration of one dollar, to W. W. Cozart and his heirs, in trust for the use and benefit of the said James C. Cozart and his wife for life, and, after the death of the survivor, to be sold, and the proceeds divided among the children and heirs at law of the said James C. Cozart; and that the defendants are the only heirs at law of said J. C. Cozart. The answer admits the judgment in favor of plaintiff as alleged, and the payment thereon as alleged, the death of J. C. Cozart, and the administration by defendant W. W. Cozart, and the want of personal assets. It denies all fraud, and denies that said J. C. Cozart died seised of the land in question, or that it will be necessary for the defendant administrator to sell lands to pay debts.
The plaintiff undertook, and offered evidence tending, to prove that, at the time of the execution of the deed first mentioned, J. C. Cozart was indebted to several persons and was insolvent. It will be seen by reference to the statement of the case that all of the debts alleged to have been due and owing by the said J. C. Cozart at the time of the execution of the deed were contracted in the years 1857 and 1858, except a judgment rendered against him in 1869, and that upon a bond for $2,000, made by J. C. Cozart and W. W Cozart on June 1, 1857, a payment had been made in February, 1870; so that according to the evidence there was a large amount of indebtedness of J. C. Cozart at the time of the execution of said deed, but that at the date of the beginning of this action the presumption of payment had arisen, if payment were pleaded, upon all of the said bonds, and that an action upon the said judgment would be barred if the statute of limitations were pleaded thereto, provided there were no disabilities which prevented the running of the statute. The plaintiff offered evidence tending to prove that said deed was made to a son and a son-in-law of the grantor; that it was secretly made, and the registration thereof long delayed; that the grantor remained in possession, exercising acts of ownership over said land, all his life; that some 13 years after the execution of said deed the grantees conveyed the said lands to another son of the said J. C. Cozart, as trustee for him and his wife, and under such limitation as to render said lands unavailable at the instance of creditors. Plaintiff's counsel contended that the facts proved raised the presumption of a secret trust for the benefit of the grantor and in fraud of his creditors, and that the evidence tended to prove that the $2,000 recited consideration had never been paid, or raised a presumption to that effect, which the defendants had failed to rebut. They contended that under the evidence a presumption had arisen, which had not been rebutted, that the said deed was fraudulent and void, not only as to those existing at the time of its execution, but as to all subsequent creditors. They further contended that if the deed was made with intent to defraud the then existing creditors it was void, and that, as there were still subsisting debts which existed at the time of the execution of the deed, it was void also as to subsequent...
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