Houston v. Bogle

• Decision Date: 31 December 1849
• Citation: 32 N.C. 496,10 Ired. 496
• Court: North Carolina Supreme Court
• Parties: WILLIAM HOUSTON v. JOSEPH M. BOGLE.

10 Ired. 496

32 N.C. 496

WILLIAM HOUSTON

v.JOSEPH M. BOGLE.

Supreme Court of North Carolina.

December Term, 1849.

Before the passage of the Act of 1840, ch. 28, no voluntary conveyance of property, even to a child, could be upheld to defeat an existing creditor, if the creditor could find no other property of his debtor, out of which to obtain satisfaction.

The Act of 1840, ch. 28, applies only to voluntary conveyances made after that Act went into force. Its application to prior voluntary conveyances would be unconstitutional, as it is not the province of the Legislature but of the Judiciary, to declare what the law was before the passage of any act. The Legislature cannot divest vested rights.

The case of Arnett v. Wanet, 6 Ire. 41, cited and commented on.

The cases of Hoke v. Henderson, 4 Dev 15, O'Daniel v. Crawford, 4 Dev. 197, Jones v. Young, 1 Dev. & Bat. 352, and Smith v. Reavis, 7 Ire. 341, cited and approved.

Appeal from the Superior Court of Law of Lincoln County, at the Fall Term 1848, his Honor Judge MOORE presiding, to the Supreme Court at Morganton, and thence transferred, at August Term 1849, to the Supreme Court at Raleigh.

This was an action of trespass vi et armis, brought to recover damages for wrongfully taking and selling a number of slaves. The material facts of the case are these.

The plaintiff offered in evidence a deed of trust, executed by one William L. Davidson, conveying the negroes in controversy to him, for the purpose of securing a large debt, which the said William L. Davidson owed to one Theophilus Falls, and several other smaller debts, due to other persons, for which the said Falls was surety. The deed was executed the 20th of February 1833, the day it bears date, was proved before the Clerk of Iredell County Court of that County and was registered on the 26th day of the same month. The plaintiff proved, that the defendant took the said negroes from the possession of the said W. L. Davidson, and sold them on the 20th day of May 1840. The plaintiff also proved the value of the slaves.

The defendant then showed, that John D. Graham and wife, commenced a suit in Equity against George L. Davidson, the father of the said W. L. Davidson, in 1829, and then offered in evidence the report, account and decree in said cause, after it was carried to the Supreme Court. The defendant proved by the said decree, that G. L. Davidson was one of the executors of one Conner, the father of the wife of the said John D. Graham, and, as early as 1809, he was appointed the guardian of Mrs. Graham (then Elizabeth E. Conner) and as the executor of the said Conner and subsequently becoming the guardian of E. E. Connor, he was indebted to J. D. Graham and wife in the sum of $3958 69 on the 1st day of September 1826. This amount of indebtedness arose mainly from the defalcation and insolvency of one Work, who had been a guardian, with the said Davidson, of the said E. E. Conner, and of an erroneous construction which the executor of said Conner had put upon his will in the division of the estate. The defendant also offered in evidence a decree in the Supreme Court, which Andrew Allison obtained against the said Geo. L. Davidson in 1832. By reference to this decree, it appeared that G. L. Davidson was indebted to the said Allison on the 1st day of September, 1826, in the sum of $2046 16. It was also proved by a deed of trust, executed by G. L. Davidson, that the said G. L. Davidson owed debts by bonds to different persons to the amount of $231 88, contracted previously to the 1st of September 1826, which at that time and for several years after remained unpaid. It was proved that in June 1825, the said Davidson obtained a discount at the Branch of the old State Bank of North Carolina at Salisbury, for $731. In relation to this debt the Cashier of said Bank stated, that by reference to the books of that Branch of the Bank, it appeared that the note was never renewed, but whether it was paid at maturity or not, he could not say. It was also proved that the said G. L. Davidson was bound as the surety of his son, W. L. Davidson, for $450, which he assumed to pay, and which he did pay, but at what time it was not stated. The whole amount of indebtedness thus proved is $7507 83. The defendant also proved by the Cashier of said Branch Bank, that G. L. Davidson was one of the sureties of one Simonton in a note discounted at said Branch Bank in January 1826, for $3705?? and that after this time no further discount was obtained by said Simonton of any new note, nor of any note in renewal of the one above mentioned. It was in evidence, that Simonton died in the Spring of 1826, having made a will, of which he appointed the said G. L. Davidson one of the executors, and possessed of an estate of $70??000 or 80,000, which proved to be largely insolvent. The defendants also proved, that the said G. L. Davidson was a surety for different persons, who had notes discounted at the said Branch Bank in June 1826, amounting to the sum of $4124, but whether said notes were paid at maturity or not, the Cashier could not state. But he stated that no further discounts were obtained by any of those persons in renewal of the said notes. He also stated, that it was the universal practice of the said Branch Bank to require all notes, offered for discount, to be made payable ninety days after date, and that if the notes were not taken up in thirty days after they fell due, to put them in suit. It was proved that all the individuals for whom the said G. L. Davidson was bound as a surety in bank, except Simonton, were perfectly good and continued so, and one of the persons, for whom the said G?? L. Davidson was bound as above mentioned, was examined, and stated that he paid off the debt which he owed in bank. There was no evidence that G?? L. Davidson had ever paid any part of the several debts, for which he was bound as surety in bank. The defendant proved, that J. D. Graham and wife obtained a final decree, in their suit against G. L. Davidson at December term 1839, of the Supreme Court, caused an execution to be issued thereon shortly thereafter, directed to the sheriff of Iredell County, by virtue of which, the defendant, as sheriff of said County, levied upon and sold the negroes in controversy. The defendant also read in evidence a deed of trust executed by the said G. L. Davidson to George F. Davidson, dated the 20th of November 1831, by which he conveyed six negroes, by name, two tracts of land and other property, in which deed was the following clause, “and all other species of property that I have any right to and not thought of at this time, whether real or personal.”

The plaintiff read in evidence a bill of sale from G. L. Davidson to his son W. L. Davidson, dated 12th of December 1831, by which G. L. Davidson conveys to his son W. L. Davidson, negro Hannah and her two children (a part of the negroes in controversy) for the consideration of $450, that being the value of said negroes.

The defendant then shewed that John D Graham and wife, in January 1833, in their said suit against G. L. Davidson, obtained an order of sequestration, and that, in execution of the same, the Clerk and Master, on the 2nd day of February thereafter, issued a writ to the sheriff, who took from G. L. Davidson a bond on the 14th of February 1833, and at the same time left with him a bond for W. L. Davidson, which was not executed until the month of April following. The negroes mentioned in the said bond are a part of the same sued for, and are the same that are mentioned in a deed, subsequently offered in evidence by the defendant, from G. L?? Davidson to W. L. Davidson.

The defendant then proposed to offer evidence to prove that the deed of trust, which the said W. L. Davidson made to the plaintiff in this action, was made to hinder, delay, and defraud J. D. Graham and wife of the debt which they were seeking to recover of G. L. Davidson. This evidence was rejected by the Court. It was also proved that W. L. Davidson retained the possession of the property conveyed by him to the plaintiff, using it as his own, until it was levied upon by the defendant under the execution that issued upon the decree, which J. D. Graham and wife obtained against G?? L?? Davidson.

The plaintiff then proposed to read the registered copy of a deed for slaves from G. L. Davidson to the said W. L. Davidson, which was received, upon proof of the loss of the original. From this deed it appeared that G. L. Davidson conveyed to the said W. L. Davidson, on the 1st day of September 1826, a part of the slaves in controversy, and the others it was proved were the increase of those that were conveyed, except Hannah and her two children. The said deed recited a consideration of $1500; no part of which was ever paid, because the said deed was intended and so understood by the parties to be a deed of gift. Among the negroes mentioned in the said deed was one by the name of Lucy. W. L. Davidson stated that this negro Lucy was given by him to G. L. Davidson in exchange for the negro Hannah and her two children in 1831, which he conveyed to the plaintiff by the deed of trust, which had been read in this trial, from him to the plaintiffs. He also stated that the negro, which he gave in exchange, was worth as much as Hannah and her two children. The plaintiff also offered in evidence, a bill of sale from Geo. L. to the said W. L. Davidson for Hannah and her two children, dated 12th of December 1831. It was proved, that all the property specifically mentioned in the deed of trust, executed by G. L. Davidson, on the...