McCanless v. Reynolds

• Decision Date: 31 January 1876
• Citation: 74 N.C. 301
• Court: North Carolina Supreme Court
• Parties: W. W. MCCANLESS v. H. W. REYNOLDS.

74 N.C. 301

W. W. MCCANLESS

v.H. W. REYNOLDS.

Supreme Court of North Carolina.

January Term, 1876.

Where one contracts to sell a well known tract of land described by metes and bounds for a specified sum, and in the deed therefor subsequently executed, adds a strip (the locus in quo) to the land sold, without further consideration, it is fraudulent to the grantor's creditors, and no title to such added strip passes to the grantee.

Any one who has acquired the rights of a deceased person, whether by his deed or the deed of the sheriff, who is authorized to make a deed for him, is an assignee within the meaning of section 343 of the Code of Civil Procedure, and no distinction is made between a voluntary and an involuntary assignee.

Neither of the parties, (plaintiff or defendant,) whether claiming as original parties or as assignees, either by deed of the party or deed of the sheriff, is a competent witness in regard to conversations and transactions between the party who offers himself as a witness and the assignees of the dead man.

( Murphy v. Ray, 73 N, C. Rep. 588, cited, commented on and approved.)

CIVIL ACTION, in the nature of Ejectment, tried before Cloud, J., at Spring Term, 1875, of the Superior Court of FORSYTHE County.

The following is, substantially, the statement of the case sent up as a part of the record, upon appeal to this court:

The plaintiff claimed the locus in quo as a purchaser at an execution sale, the execution having been issued in his own behalf.

The defendant claimed the same under a deed from one Richard Cox, the defendant in said execution, dated prior to the sheriff's deed to the plaintiff.

The plaintiff alleged, that the locus in quo was conveyed to the defendant by the said Cox in fraud of his creditors. In support of this allegation, evidence was adduced tending to show that the plaintiff held a bond for the sum of $1,395.75, against the said Cox, dated the 31st day of March, 1866, and that on the 2d day of April, 1866, he commenced an action on said bond. That at Fall Term, 1866, the defendant pleaded to the said action, and issues joined therein. The action was pending until Spring Term, 1867, when the plaintiff recovered judgment against the defendant; and that execution issued upon the judgment, and the plaintiff became the purchaser of the locus in quo, at the execution sale.

Two other actions were commenced against Cox, each on the 22d day of March, 1866, one by W. A. King, and the other by Presley George, together amounting to about $800. That in October following, other creditors instituted actions against Cox, to recover about the sum of $1,060, to-wit, M. L. Smith and J. L. Peatress, the former of whom was a brother-in-law of Cox and the defendant. In the four last mentioned suits, judgments were confessed at Fall Term, 1866.

It was farther in evidence for the plaintiff, that on the 23d day of April, 1866, Cox executed a deed in trust conveying the “Nancy Cox tract of land to secure Charles E. Moore, M. L. Smith and Powell Simmons, his sureties, for a debt of $1,203, due the Bank of Salem, contracted in 1861. That a short time before Cox made the deed to the defendant, he declared that he owed the plaintiff a large debt, and that he did not intend to pay it. That he intended to give Mary Reynolds, a daughter of the defendant, five hundred dollars in the “Molly Cox” land (the locus in quo), and the defendant was to have the balance. That a few days before he executed the bond to defendant to make title to the land, which was dated April 11th, 1866, Cox declared that he was about to be sold out, and that “while they were selling, he was going to sell too.” A few days after this, Cox went to Virginia to the home of the defendant, when and where the contract between Cox and the defendant was made, and the title bond given. That on the day before the execution of the deed, Cox stated to a neighbor that he was about to sell his “Molly Cox” land to the defendant for $1,500, that he asked $2,000 for it, but the defendant talked like not giving it. That he would not take that from any body else in the world. That in the fall of 1866, after the conveyance of the land to the defendant, the defendant was at said neighbor's house, and a colored girl told him that she had heard that the defendant's son Dick was to come to live with Richard Cox at his home place, and his daughter Mary was to come to the “Molly Cox” place. That in reply to this, the defendant said that he had never heard of such a thing; that he had thought of giving the “Molly Cox” place to his son Abram.

There was also evidence, tending to show that on the 15th of April, the defendant and Cox came to the house of one Powell Simmons, in Stokes county, and on their arrival the defendant remarked to Gideon E. Moore, who was present at that time, that he was glad to find him there, as he wrote a good hand; that he had bought of Cox his “Molly Cox” tract of land at $1,500, and he wanted a settlement made and a deed drawn. Moore and Simmons remarked that he paid enough for it. Moore excused himself from doing the writing, saying that Simmons was the best draughtsman.

Moore testified that the defendant produced his papers, sitting near to him, and he knew that he had in his hands a bond on Cox to Moody, and by him transferred to the defendant; another for $900, or thereabout; and beside these, there was a small account, upon all of which Simmons computed the interest, Cox admitting each one to be justly due Simmons, announced the result of the calculation as $1,450, or about that sum. The defendant thereupon remarked to Cox, that it was very near what they had made it, the only difference being that Simmons had counted the fractions. It was further in evidence, that the deed was not drawn on that occasion, owing to the fact that Cox did not know the courses of the lines to the “Molly Cox” tract, and Cox left Simmons to go to his house, a few miles off, to get his deed, and was to come back that evening, but did not. The defendant stayed all night at Simmons,' and the next morning he and Simmons went off together, saying they were going to Cox's to draw the deed.

It was further in evidence, that on arriving at Cox's house, they found him with a trunk open, looking for an old deed, which he did not find; and the question arose as to how the “Molly Cox” land should be described so as to distinguish it from other lands belonging to Cox, adjacent thereto. Cox wanted the line to run across the creek, near the ford, and the defendant insisted that it should run below the ford. This disagreement arising, Cox, the defendant, and the witnesses went from the house to the ford, still disagreeing. They then went down to the creek, about a hundred yards to a bend, where there was a large rock in the creek, and a cleared ridge makes a near approach to the creek. The defendant then said to Cox, “I want to see you,” and they went off into the woods, out of sight of the witnesses, and were gone sometime. When they returned, the defendant remarked that Cox had agreed for the line to commence at the bend, and run due north and south through Cox's land to his outside lines. The deed was thus drawn, a copy of which the plaintiff offered in evidence. The quantity of land, between the road, as it runs through the land, and the line crossing at the bend, was variously estimated by the witnesses, ranging from twenty-seven to one hundred acres.

It was further in evidence that Cox had been a man of large property up to the time the slaves were emancipated, and afterward owned the following property, to-wit: The “Molly Cox” place, containing four hundred and seventy-five acres, the locus in quo sold to the defendant for the sum of $1,500; the “Nancy Cox” place, containing three hundred and twenty-seven acres, said to be worth more than the “Molly Cox” place by some of the witnesses, and by some less, which after the execution of the deed to the defendant, was conveyed in trust and sold at auction for five hundred dollars; the “House place,” containing six hundred and thirty-five acres, worth $3,000, and sold at a sheriff's sale for $1.00 per acre; the “Turkey Branch place,” worth from $150 to $400; the “Mountain place,” worth $100, and a lot in Danbury, worth $50, besides personal property which brought $275. There was no evidence that Cox was reputed as insolvent at the time of the execution of the deed to the defendant; but some of the witnesses, testified that it was thought that he would break. It was in evidence that before the end of the year 1866, Cox was entirely sold out, leaving a considerable part of his debts unpaid, his property selling for a low price, owing to the scarcity of money, the then prevalent fear of confiscation in that section, and the consequent scarcity of purchasers of real estate.

The evidence as to the value of the “Molly Cox place” was conflicting, some of the witnesses testifying that it was worth more than $1.500, and others that it was worth less. It was further in evidence that the lands retained by Cox after the execution of the deed to the defendant, if sold at the same proportional price, would have paid off all his debts and left a considerable surplus. That before the execution of the deed to the defendant, the defendant asked one Wm. S. Lawson, “if any one had made a break on Cox,” stating that he was expecting it, and that on the day after the execution of the deed, defendant came to Lawson's house and told him that he had bought the “Molly Cox place” for $1,500, and asked the witness what he thought of it, and if he had not paid too much. To which the witness replied that it was worth more money. The defendant remarked, “If it was so, it was all in the family; that Cox was old, and would have to be taken care of; that McCanless and others had debts (naming the debt due the Bank of Salem), and if those debts came against him it would break him up. He said McCanless had sued Cox,...