Jackson v. Spivey

• Decision Date: 31 January 1869
• Citation: 63 N.C. 261
• Court: North Carolina Supreme Court
• Parties: THOMAS JACKSON v. W. T. SPIVEY and JOSEPH HARRIS.

63 N.C. 261

THOMAS JACKSON

v.W. T. SPIVEY and JOSEPH HARRIS.

Supreme Court of North Carolina.

January Term, 1869.

Unless the order for the trial of issues before a jury so direct, the answer of one of the defendants in the original cause, is not to be read on their behalf upon such trial.

Where an insolvent person misapplied money which had been placed in his hands in trust for his own son, Held, that he might replace the same without being guilty of fraud against other creditors.

Although the verdict of a jury upon issues which had been tried by them in obedience of the order of a Court of Equity, be not binding upon that Court, it will not lightly be disturbed.

( Thomas v. Kyles, 1 Jon. Eq. 302, Hughes v. Blackwell, 6 Jon. Eq. 63, cited and approved.)

ISSUES in an Equity cause, tried before Buxton, J., at Fall Term 1867 of the Superior Court of FRANKLIN.

The bill in the original cause was for the specific performance of a contract to sell certain lands; and for an injunction against an action of Ejectment, threatened by Harris, as purchaser at a sale under an execution against one Andrew Jackson. Having been set for hearing upon the pleadings and proofs, it was transferred to the Supreme Court, and, by order of that Court at June term 1867, issues were framed, and sent down for trial before a jury at Fall Term 1867 of the Superior Court, and it was “further ordered that the parties have leave to read in evidence [at such trial] depositions de bene esse, and to examine witnesses.”

The issues were:

1. Was the receipt, which is in the following words: “Received of Thomas J. Jackson by the hands of Andrew Jackson sixty-four dollars in full payment of the balance of the purchase money for the land which I sold, and on which the said Andrew Jackson now resides, adjoining the lands of David W. Spivey, Jacob H. Cooley and others, containing forty and one-half acres, the deed to which I am to make to the said Thomas Jackson on application, this the 16th day of January 1858.

+------------------------+
                ¦(Signed)¦W. T. SPIVEY.” ¦
                +------------------------+
                

Witness,

S. W. Bartholomew.

given in good faith for money received from Thomas Waters, and paid by Andrew Jackson to W. T. Spivey for the purchase of the land in good faith for Thomas Jackson the plaintiff.

2. Was the said land paid for by Andrew Jackson, and the receipt given by W. T. Spivey to make title to Thomas Jackson taken fraudulently, for the purpose of hindering and delaying the creditors of Andrew Jackson in the collection of their debts.

Upon the trial the defendants offered to read the answer of Spivey (who was dead); the plaintiffs objected, and the Court thereupon excluded it. The defendants excepted.

The plaintiff offered evidence tending to show that in 1852 his grand-father had placed in the hands of Andrew Jackson, funds sufficient to buy the land in question, with directions to buy it of said W. T. Spivey for the plaintiff; that Andrew Jackson accordingly bargained for the land, but did not at once pay the whole price for it, $20 being wanting because of his having misapplied a part of the funds; that afterwards, in 1858, said Andrew paid out of his own pocket to Spivey an account held by the latter against him for $65--one item in which was the $20 above, and that thereupon he took the receipt in dispute.

His Honor, upon this part of the case, instructed the jury that if the grand-father had placed funds in the hands of Andrew Jackson, as above mentioned, for the purpose of buying the land in dispute for Thomas Jackson, it would make no difference whether Andrew had applied the identical money to that purpose at once, or had first misapplied the funds to his own purposes and then replaced them with funds of his own; in either event the plaintiff was entitled to their verdict.

Verdict for the plaintiff upon both issues. Rule for a new trial. Rule discharged; judgment against the...