Davis v. Council

• Decision Date: 28 February 1885
• Citation: 92 N.C. 725
• Court: North Carolina Supreme Court
• Parties: A. G. DAVIS v. J. T. COUNCIL et als.

92 N.C. 725

A. G. DAVIS

v.J. T. COUNCIL et als.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION, for the recovery of land, tried before Shepherd, Judge, and a jury, at Fall Term, 1884, of the Superior Court of COLUMBUS county.

The land in controversy belonged to the defendant C. T. Davis, under whom the contestants in the action claim. The plaintiff claims his title from sales made by the assignee in bankruptcy of said C. T. Davis, and the assignee's deed therefor, made in February, 1882, and also by the assignee in bankruptcy of the defendant J. T. Council, to whom the said Davis had previously undertaken to convey, and the assignee's deed therefor, also executed in February, 1882.

The defendants, J. T. Council and Mary J. Council, his wife, claim the estate by virtue of a deed executed by the said Davis to the former in February, 1867, and subsequent deeds transmitting title to the latter, on whose behalf the plaintiff's right of recovery is resisted.

The case settled by the presiding judge, as upon disagreement and by consent of counsel, is thus stated:

The following issues were settled and agreed upon by counsel and submitted to the jury:

1. Is the deed from C. T. Davis to J. T. Council fraudulent?

Answer--Yes.

2. Have the defendants and those under whom they claim been in the continuous, open and exclusive adverse possession of the lands described in the complaint for seven years next preceding the commencement of this action under known and visible boundaries and color of title?

Answer--No.

3. What was the annual value of said land?

Answer--$150.

There was no answer on the part of C. T. Davis, who was in possession of a part of the land under his mother-in-law, Larmia Young, to whom J. T. Council had executed a deed on tke 10th of July, 1867, in trust, for the wife of Davis. Judgment by default, was rendered against him. It was conceded that at the time of the execution of the deed by C. T. Davis to J. T. Council, that said Davis was insolvent, and that J. T. Council knew of his insolvency at that time, also that the deed conveyed all the land of C. T. Davis, and that on the same date, Davis had executed a bill of sale for his entire personal property to said Council, the possession of which has never been changed.

C. T. Davis was introduced by the plaintiff, who, among other things, testified that one John Foy had obtained a judgment against him and one D. B. Melvin, his security, in the Superior Court of Bladen county, in April, 1867, for the sum of four hundred and sixty-five dollars and interest; that for the purpose of defeating the collection of this judgment and other indebtedness, he applied to J. T. Council for advice; that before this he had spoken to D. B. Melvin about this purpose, and that it was agreed between them that Davis should talk to Council about the matter for them both; that he stated his and Melvin's situation to Council, and that Council advised that both witness and Melvin should convey their property to him absolutely, for the purpose of defrauding the judgment; that he (witness) agreed to the proposition, and executed deeds conveying all his real and personal property to said Council for that purpose; that before executing these deeds he communicated to Melvin all that had occurred between witness and Council, and that Council had said he would take care of both of them; that Melvin a few days thereafter executed conveyances of all his property to Council for the same purpose; and that the conveyances were antedated.

After this witness was cross-examined by the defendant, the plaintiff, for the purpose of corroborating C. T. Davis, introduced D. B. Melvin, and proposed to prove that he had the conversation with Davis as deposed to by him, and that in consequence of the same he applied to Council a few days afterwards; that Council advised him to execute conveyances of all his property to him, as Davis had done, for the purpose of defeating the judgment; that Council told him of a similar arrangement he had made for Davis, and of Davis's application to him; that, therefore, witness executed a deed conveying all of his property to Council for the purpose of defeating the Foy judgment; and that the conveyances executed by him to Council were antedated.

This was objected to by defendant, but the Court admitted the testimony for the purpose of corroborating Davis, and the witness testified to the above mentioned state of facts. The defendant excepted.

The defendant introduced a deed dated August 24, 1872, from Mary J. Council, wife of J. T. Council, to Matthew Burney, conveying the land in controversy, and also a deed from J. T. Council, administrator of Matthew Burney, to Mary J. Council, dated August 26, 1874.

These deeds were introduced to show color of title, and there was evidence tending to show that Mary J. Council, through her tenants, entered under her deed and continued in adverse possession for seven years before the commencement of this action. J. T. Council acted as the agent of his wife, Mary J. Council, in all of their transactions. There were no instructions prayed for, and the Court charged the jury as to what constituted color of title, and what kind of possession was sufficient to constitute adverse possession.

There were no exceptions to the charge on these points, but after verdict the defendant excepted, because under the second issue, the Court failed to charge the jury that the title of a bona fide purchaser from a fraudulent grantee, who obtains his title from such fraudulent grantee prior to the title which a creditor of the fraudulent grantee had, ought to be preferred to the creditor of such fraudulent grantor, notwithstanding the fraud.

There was no evidence of the payment of any purchase money.

The jury found this issue in favor of the plaintiff.

The defendant moved for a new trial for the failure to charge the jury as stated in the exceptions, and for the admission of the testimony of witness Wilson.

The motion was...