Helms v. Green
| Decision Date | 21 April 1890 |
| Citation | 11 S.E. 470,105 N.C. 251 |
| Parties | HELMS v. GREEN. |
| Court | North Carolina Supreme Court |
This was an action begun in the superior court of Union county, N C., on September 12, 1883, for the recovery of a tract of land situated in said county, and tried at February term 1889, of said court, before CLARK, J., and a jury.
The following is a statement of the facts, as far as is necessary to an understanding of the exceptions made by defendant, and which are the basis of the appeal: The plaintiff showed title out of the state, and in one W. B. Hinson, by introducing in evidence grants from the state to one Pinion and one McCollum, and subsequent and successive conveyances to said Hindson, and then offered in evidence a deed from the sheriff, dated February 15, 1882, regular in form, and duly proven and recorded, purporting to convey to plaintiff the land sued for, and reciting that the sale was had under execution issued upon judgment in favor of one C. N. Simpson administrator W. H. Simpson, and against said W. B. Hinson which judgment was docketed in superior court of Union county, N. C., on 21st day of August, 1881, as appeared by the recitals in the sheriff's deed aforesaid, and upon the execution and judgment dockets of said court, which were offered in evidence. After the introduction of these conveyances, all of which were admitted to cover the land in dispute, and after evidence as to defendant's being in possession of the land in dispute, and as to annual rental value of said land, the plaintiff rested his case. No exception is made, or was made upon the trial, to the evidence, charge of the presiding judge, or verdict, of the jury as to the questions of possession and damages. After plaintiff rested his case the defendant offered in evidence a deed to himself from said W. B. Hinson and wife, dated March 30, 1881, proven and recorded in April, 1885, reciting a consideration of $300 as the amount of the purchase money paid, a copy of which deed, with the probate thereof, is hereto appended as a part of this statement of the case, and marked "A." It was admitted that this deed covered or purported to convey, the land in dispute. After the introduction of this deed the defendant rested.
Exception 1. Plaintiff then called defendant to the witness stand, had him sworn, and proposed to elicit from him testimony tending to prove said deed, executed to him by Hinson and wife, was fraudulent and inoperative. The defendant objected on the ground that said deed, as he claimed, could not be attacked for fraud in this proceeding, but that an action against the parties to said deed, for the purpose of having it canceled for fraud, was plaintiff's only remedy by which he could attack said deed. Objection overruled, and defendant excepted. The witness (defendant) then proceeded to testify that he was a son-in-law of W. B. Hinson; that the deed to him was dated the day he got it; that he took possession of the land shortly after he got the deed; that he did not to pay $200 for the land; that he did not agree to pay more; that he gave his note to Hinson for the $200; that he has never paid anything on the note; that he gave no security for the payment of the note, nor did he give any mortgage to secure the note; that he did not know whether or not Hinson was insolvent at the time he executed the deed to witness; that witness was never examined in supplemental proceedings taken out against Hinson; did not know of Hinson conveying away other lands about that time to his (Hinson's) other sons-in-law; didn't know whether Hinson, at the time of the conveyance to witness, retained Sufficient property to pay his (Hinson's) debts; that he heard that Hinson was put in jail for refusing to testify in supplemental proceedings instituted against him; that witness at the time of said conveyance, and from then to the trial of this case, was not worth more than his homestead and personal property exemption; that witness and wife own 148 acres of land besides the land in dispute in this case; that the deed for the 148 acres was made to witness and his wife jointly, and was partly a gift and partly a purchase; that 100 acres was given and 48 bought, and witness paid $240; that Hinson conveyed this 148-acre tract to witness and his wife 4 or 5 years after witness and married Hinson's daughter; that witness now owns $150 worth of personal property, and is worth about the same now that he was when the deed for the land in dispute was executed to him. Hinson was considered good or solvent till a short time before he executed the deed to witness for the land in dispute. Witness on cross-examination testified that there was no understanding between him and Hinson that he was to take the deed for the land in dispute for the purpose of keeping off Hinson's creditors; that in his opinion the land conveyed to him (the land in dispute) was not worth more than $200, it being in litigation or in dispute at the time it was conveyed to him.
Exception 2. The plaintiff then proposed to offer further evidence tending to attack said deed from Hinson to Green for fraud and the defendant objected, and assigned as the ground therefore that the plaintiff, having introduced the defendant as his witness, could not offer evidence tending to impeach or contradict him, but was bound to accept as true and conclusive the testimony of said witness. The court overruled the objection in part, stating his opinion of the law to be that the plaintiff was not allowed, and would not be allowed, to introduce evidence for the purpose of impeaching the defendant, but that he would allow the plaintiff to show, if he could, a different state of facts from those as testified to by the defendant. The defendant excepted. Plaintiff then introduced as a witness J. J. Medlin, who testified that he was, and had been for a long time, acquainted with W. B. Hinson; that in the year 1881, and at the time of the execution of said deed from Hinson to Green, it was generally reported that W. B. Hinson was insolvent. G. W. Mullies, a witness introduced by plaintiff, testified that, at the time of said conveyance from Hinson to Green, the said Hinson was generally reported to be insolvent; that the defendant, J. L. Green, at the time of said conveyance, was residing, and had resided for some time prior thereto, within about a mile or one mile and a half of the said W. B. Hinson; that D. R. Pusser, J. W. Love, and the said J. L. Green were the sons-in-law of said Hinson, and were such sons-in-law during the year 1881, and for some time previous thereto. It was in evidence by the plaintiff, who was examined as a witness in his own behalf, that the tract of land in dispute, and which was sued for, contained about 125 acres, and was worth $5 or $6 per acre at the time of conveyance from Hinson to Green; and by one E. H. Hinson, who was likewise examined as witness for plaintiff, and testified the same as G. W. Helms as to the quantity and value of the land at the time of said conveyance, i. e., that there were about 125 acres of it, and that it worth $5 or $6 per acre. The witness Helms and E. H. Hinson both testified that in March, 1881, when said conveyance was executed, the said W. B. Hinson was generally reported to be insolvent, and was much involved in debt. The witness Hinson also testified that, at the time said deed was executed, he (the witness) had a suit pending against said W. B. Hinson in which he had sued for the recovery of $10,000 on account of alleged slanderous charges made against him by said W. B. Hinson, and that W. B. Hinson, before witness sued him, was solvent, and worth $3,500 or $7,000. It was also in evidence that, at the time of the execution of said conveyance to Green, one James Mullis had commenced suit against said W. B. Hinson for the recovery of $5,000 on account of alleged slanderous charges made against said Mullis by said W. B. Hinson, and that the said suit afterwards abated on account of the death of plaintiff Mullis. It was in evidence that the said suit of E. H. Hinson against said W. B. Hinson was compromised some time after the execution of said deed from Hinson to Green. The execution dockets of the superior court of Union county, N. C., were introduced, showing judgments which were rendered and docketed against said W. B. Hinson after the execution of said deed to Green,--one for $179.25 and interest, one for $291.15 and interest, and the other amounting to about $60 and costs,--all of which were rendered on debts contracted by the said W. B. Hinson several years before he executed said deed to Green. There was evidence that the two first named of these judgments have since been paid by T. L. Love and J. W. Love, while the last-named judgment was the one on which an execution issued, and a sale was had by the sheriff on February 6, 1882, at which the plaintiff became the purchaser, and took the deed dated February 15, 1882, as hereinbefore stated. The judgment and execution upon and under which said sale was had were introduced, showing sheriff's return and allotment of exemptions to said W. B. Hinson, and that the said land in dispute in this action, and which was sold by the sheriff, was a part of the excess of the homestead allotted said Hinson. The note upon which said judgment was rendered was introduced in evidence, and was dated October 1, 1874. It was in evidence that T. L. Love, the subscribing witness to the deed from Hinson to Green, was a brother to J. W. Love, one of the sons-in-law of said W. B. Hinson. It was in evidence that the said W. B. Hinson was committed to jail for refusing to be examined in supplementary proceedings instituted upon the judgments which were afterwards paid by said T. L. Love and J. W. Love. Plaintiff offered in evidence, further, the...
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