Mccullock v. Doak

• Decision Date: 31 January 1873
• Citation: 68 N.C. 267
• Court: North Carolina Supreme Court
• Parties: JOHN MCCULLOCK v. JAS. W. DOAK and wife, MARTHA M. DOAK.

68 N.C. 267

JOHN MCCULLOCK

v.JAS. W. DOAK and wife, MARTHA M. DOAK.

Supreme Court of North Carolina.

January Term, 1873.

Evidence that the grantee in a certain deed, which is impeached for fraud, and who afterwards conveyed the land to his step-daughter, the wife of the grantor, in consideration “of love and affection,” attempted before that time, to purchase for his step daughter another house and lot, is not admissible for the purpose of establishing that the deed to himself was bona fide and for a fair consideration.

The refusal of a Judge of the Superior Court to grant a new trial on the ground of newly discovered evidence is such a matter of discretion that this Court will not review it.

The judgment authorized to be set aside by the Superior Court on account of mistake, inadvertence, surprise, or excusable neglect, refers to judgments rendered at a previous term, and does not relate to what takes place at the trial term.

A charge by the Judge below, “that the deed,” from the grantor to the grantee, “would have been a sufficient defence, had not the insolvency or at least the very great indebtedness of the grantor, at the time, been established, which presumptively tainted the deed with fraud, whereby it devolved on the defendants,” (claiming under the deed,) “to show affirmatively that the sale “from the grantor to the grantee,” was a fair, honest and bona fide transaction,” when warranted by the facts, is no ground for a new trial.

( Satterwhite v. Hicks, Busb. 105, and Reiger v. Davis, 67 N. C. Rep. 185, cited and approved.)

CIVIL ACTION, to recover possession of land, tried before Tourgee, J., at the Spring Term, 1872, of GUILFORD Superior Court.

The plaintiff claimed the land in controversy, under a sale made by the sheriff of Guilford, by virtue of certain executions, regularly issued on judgments rendered in the Superior Court of said county; at which sale the plaintiff became the purchaser, and to whom the sheriff executed his deed according to law. The plaintiff alleged that the title to the land sold by the sheriff, and sought now to be recovered, had been in the defendant in the executions, James W. Doak, as also one of the defendant's in this action, and that he, Doak, had conveyed the same to Jacob Balsey, the step-father of Martha M. Doak, the feme defendant, and wife of the other defendant, who conveyed the same for the consideration of “love and affection,” to the said Martha. The plaintiff alleged, that this transaction and the conveyances were fraudulent and void, as against the creditors of James W. Doak; and as bearing on this point, the plaintiff introduced the following evidence:

1st. That James W. Doak, on the 27th of January, 1863, sold a tract of land to one Weatherly for $5,000 cash, telling Weatherly at the time that he wanted the money to pay debts, and that he had bought a peice of land from Jacob Balsey.

2d. A deed from Balsey to the defendant, Jas. W. Doak, dated the day after the transaction with Weatherly for five acres of the land in controversy, in which deed, a consideration of $1,250, was recited and acknowledged to be paid; and also another deed from C. P. Mendenhall to Doak, dated 23d March 1863, wherein, for the consideration of $200, acknowledged to be paid, seven acres more were conveyed, which two tracts were the lands sold by the sheriff and purchased by the plaintiff, as before stated, and is that, sought to be recovered in this action.

3d. Two deeds, executed by the defendant, Jas. W. Doak, on the 13th October, 1865, and registered on the 18th day of the same month, to said Jacob Balsey; the one for seven acres of land, in consideration of $200, and the other for five acres of land for $1,000, the same as above alluded to. And also a deed from Balsey to the feme defendant Martha M. Doak, purporting to be dated 4th December, 1866, but which was not registered until the 24th January, 1870, for the same land, for and in consideration of “love and affection.” This deed was witnessed by one Eckle, who testified that he attested it in the office of Attorney McLean, on the day of its date, and could not say that he had ever seen the deed since that day.

4th. That the defendant, Jas. W. Doak, at the end of the war, and continuously since, was indebted to various persons in large amounts and was insolvent.

The plaintiff further showed by one Clark, that he, Clark, drew and witnessed the two deeds from Doak to Balsey, that they together applied to him to write the same one evening, requesting that the deeds should be ready by the next morning; that at the delivery of the deeds, he saw no money paid, nor bonds, nor notes given or surrendered, and there was no settlement between the parties in his presence. This witness afterwards stated, upon being introduced for the defendants, that at the time the deeds were executed, he heard Balsey say, that Doak owed him for borrowed money and for standing security more than the land was worth.

In reply to the plaintiff's evidence, the defendants introduced testimony showing that they removed from the land (the same in controversy), in the Spring of 1865, and did not again reside thereon until 1867. In the meantime, the premises were occupied by one Julian, who paid the rent of 1865 to one Jas. W. Cook, and the rent for 1866 to Balsey. The defendants, as also Jacob Balsey and his wife, testified to the following facts, to-wit: That the defendant, Jas. W. Doak, still owed Balsey a part of the purchase money for the said land, and was besides truly indebted to him in other sums amounting to more than the value of the land, giving of such indebtedness a detailed statement, and how the same was contracted; that the re-sale to Balsey was in consideration of the discharge of such indebtedness. On cross examination, the witnesseses were asked for the notes or bonds surrendered. All testified, that there were notes surrendered; and the feme defe...