Gwynn v. Hodge

CourtUnited States State Supreme Court of North Carolina
Citation4 Jones 168,49 N.C. 168
Decision Date31 December 1856
PartiesAUGUSTUS GWYNN v. SUSAN M. HODGE.
OPINION TEXT STARTS HERE

A party made a bill of sale of personal chattels in the ordinary form, and there was a parol agreement made at the same time, that the articles should be delivered on a given day, which was not done; Held that the title to the property passed from the date of the conveyance, notwithstanding the parol agreement.

The owner of a bond on an individual, with a surety to it, endorsed it without recourse upon the endorser, as the consideration for property bought of the endorsee, having first cut the surety's name from the bond; it was Held, that the endorsement amounted to a valid consideration in the contract of purchase.

A deed is good in a Court of law, notwithstanding any fraud in the consideration of it, or in the false representation of a collateral fact which induced the party to enter into it. It is only fraud in the factum, which will amount to a defense in a Court of law.

ACTION of TROVER, tried before DICK, Judge, at the Spring Term, 1856, of Caswell Superior Court.

The plaintiff claimed title to the property in question, which consisted of a carriage and horses, with some other articles of personal property, by virtue of a written transfer, which was lost. It was proved to have been in the ordinary form of a bill of sale, and the consideration of it was the endorsement, to the defendant, of a bond payable to George W. Swepston by one Russell, to which the name of plaintiff's wife had been signed as surety while a feme sole, but which was then and there cut off by consent of the parties. This endorsement was made without recourse to the endorser. As a further consideration to the bill of sale, Swepston, as agent for plaintiff, made a release to the bargainor of all claim which he (plaintiff) might have against defendant, for having fraudulently removed said Russell out of the county. The property was not delivered when the bill of sale was executed, but by a parol agreement, made at that time, it was to be delivered on a given day, which, on demand, was refused.

The plaintiff employed Swepston to manage and negotiate with Mrs. Hodge for his indemnity against the bond. Evidence was introduced, tending to show, that Swepston alarmed the defendant, by falsely representing to her the extent of her liability for Russell's debts, and by other false statements, and by threatening to levy an attachment on her property; and had thus induced her to sign the bill of sale above referred to.

The defendant contended, first, that no such right passed by the written transfer, accompanied with the parol agreement, as would enable the plaintiff to sustain this action.

Secondly. That there was no consideration.

Thirdly. That there was such a fraud practiced by pl...

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5 cases
  • Thomas v. Merritt
    • United States
    • United States State Supreme Court of North Carolina
    • 4 d3 Novembro d3 1925
    ...be relieved against only by a suit in equity, because only voidable. McArthur v. Johnson, 61 N. C. 317, 93 Am. Dec. 593; Gwynn v. Hodge, 49 N. C. 168; Canoy v. Troutman, 29 N. C. 155; Reed v. Moore, 25 N. C. 310; Logan v. Simmons, 18 N. C. 13. It was said by Pearson, J., in Devereux v. Burg......
  • Furst & Thomas v. Merritt
    • United States
    • United States State Supreme Court of North Carolina
    • 4 d3 Novembro d3 1925
    ...... only by a suit in equity, because only voidable. McArthur. v. Johnson, 61 N.C. 317, 93 Am. Dec. 593; Gwynn v. Hodge, 49 N.C. 168; Canoy v. Troutman, 29 N.C. 155; Reed v. Moore, 25 N.C. 310; Logan v. Simmons, 18 N.C. 13. . .          It was. ......
  • Orange Belt Land Exchange, Inc. v. Speer
    • United States
    • United States State Supreme Court of Florida
    • 19 d6 Julho d6 1930
    ...v. Doyle, 53 Cal. 713; Richardson v. Kimball, 28 Me. 463; Philbrook v. Eaton, 134 Mass. 398; Williams v. Gray, 39 Mo. 201; Gwynn v. Hodge, 4 Jones' Law 49 N.C. 168; 35 Cyc. 336, 24 R. C. L. But the defendants averred in their answer that the possession of the property was delivered to them.......
  • Garner v. Qualls
    • United States
    • United States State Supreme Court of North Carolina
    • 31 d3 Dezembro d3 1856
    ...of their witnesses to be true; because the alleged fraud was in the consideration and not in the factum of the instrument. See Gwynn v. Hodge, 49 N.C. 168. The counsel for the defendants, in reply, say there was evidence that a forgery had been committed, derived from the plaintiff's own de......
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