McLeod v. Bullard

• Decision Date: 31 January 1881
• Citation: 84 N.C. 515
• Court: North Carolina Supreme Court
• Parties: JAMES MCLEOD v. C. W. BULLARD and others.

84 N.C. 515

JAMES MCLEOD

v.C. W. BULLARD and others.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION tried at Fall Term, 1880, of RICHMOND Superior Court, before Avery, J.

The plaintiff alleges:

1. That in November, 1870, one A. A. McKethan, having recovered a judgment against him in Cumberland superior court, caused his land, lying in Richmond county, to be levied upon and advertised for sale thereunder; that wishing to save his land, he placed an amount of money sufficient to satisfy said judgment in the hands of the defendant, Charles W. Bullard, who agreed to attend the sale as the agent of the plaintiff, and buy in the land for him; that said Charles W. did attend the sale and buy the land with the plaintiff's money, but took the deed in his own name; that by pretending, at the sale, to be buying it for the plaintiff, the said Charles W. succeeded in suppressing the bidding for the land and thereby was enabled to buy it at an under-value.

2. That on the 23d of January, 1873, the said defendant, Charles W. Bullard, fraudulently induced the plaintiff to make him a deed to the same land, by representing to him that it was only an agreement to submit all matters of account between them to arbitration--the plaintiff at the time being so drunk as to be incapable of understanding what he was doing.

3. That in 1870, the plaintiff gave a mortgage to the said defendant, Charles W., to secure advances for agricultural purposes, under which he had received some small advances; but that said defendant had taken possession of his land; and the rents thereof, together with some payments in money, had not only been sufficient to discharge said advances, but to bring the said defendant in debt to the plaintiff.

Thereupon the plaintiff asks that the two deeds--the one from the sheriff to said defendant, and the other from himself to the defendant, dated the 23d of January, 1873--may be decreed to be cancelled; that he recover of the defendants the possession of the lands, and that an account be taken of the rents received by said defendant and the payments made him.

The defendant, Charles W., admits in his answer the execution of the mortgage as alleged by the plaintiff, but says there is a large sum due under it to himself, for advances made the plaintiff; and he denies all the other allegations made in the plaintiff's complaint.

1 Exc. When the case was called for trial and before the jury were empanelled, the plaintiff referred to an affidavit which he had filed at spring term, 1875, alleging that an inspection of the deed of the 23d of January, 1873, was necessary to him on the trial of his cause; and to a motion then made that the defendant should be required to produce it--which motion had been continued by the court; and he moved the court to order the defendant to produce the deed, alleging that the face of the deed itself furnished some evidence of the fraud practiced in procuring its execution. The defendant objected to this upon the ground that the plaintiff had not prosecuted his motion; and insisted that time should be given him to answer the affidavit. The judge then inquired of the defendant's counsel what reason the defendant would assign in his answer, if allowed the time to make one, why the deed should not be produced and inspected as asked for, saying that if the reason seemed a valid one, he would extend the time; to which the counsel replied that he expected to set forth in his answer that the allegations of fraud in the affidavit and complaint were not true. The judge thereupon refused to extend the time to answer and ordered that the deed be produced; to which the defendants excepted.

2 Exc. The plaintiff, being introduced as a witness in his own behalf and having testified that he was indebted to A. A. McKethan, was about to speak of said McKethan's having obtained a judgment against him in Cumberland superior court, when the defendants objected. The plaintiff then offered in evidence a transcript of such judgment of the superior court of Cumberland, which had been filed and docketed in the superior court of Richmond county; to which the defendants objected, and upon their objection being overruled and the said transcript admitted in evidence, they excepted. The plaintiff then testified that in November, 1870, he gave to the defendant, Charles W. Bullard, three bales of cotton to sell and satisfy the McKethan judgment; that he and said defendant went together to Fayetteville in January, following, and he saw Bullard pay sixty-five dollars to McKethan, who agreed to accept that sum in discharge of his judgment, except the costs; that the sale of plaintiff's land, under this judgment, took place in April next after the payment of the money in January; that he did not attend the sale, but said defendant, Charles W., agreed to do so and buy the land for him. The plaintiff then offered in evidence the deed of the 23d of January, 1873, being that one which the said defendant had produced at the trial under the order of the court, and testified that he first saw the paper at a place called “Laurel Hill,” where the said Charles W. was doing business, and where he had lived up to a short time before, when he and his family had taken possession of plaintiff's house. In regard to the manner of his taking possession of his house, the plaintiff testified that, on one occasion, previous to the execution of the deed of the 23rd of January, the other defendant, W. W. Bullard, had come to his house and induced the plaintiff to return home with him; and on the next day, by one pretense or another, had prevailed on him to go to several other places with him, so that plaintiff did not reach his own home until after dark on the second day; that, upon getting there, he found the defendant, Charles W., and his family, occupying his house, and his own things removed to another apartment; that this was the first intimation he had of any purpose to take possession of his place, and he had never consented that the same should be done; and the fact that it was done had the effect to cause him to drink to great excess; that soon thereafter, the defendant, Charles W., said to plaintiff that he wanted the matters between them settled and was willing to compromise them, and proposed that they should go together to Laurel Hill, to which plaintiff assented; that he was drunk before he started, and after getting to the place (which they did about 9 o'clock, a. m.), he got more spirits from said defendant and drank it.

3 Exc. The plaintiff then proposed to prove, by himself as witness, that the said defendant had a bar-room at Laurel Hill, to which the defendant objected, and upon his objection being overruled, excepted. Plaintiff then testified that said defendant did keep a bar-room at the place, and that he furnished the plaintiff with spirits therefrom on that day, by the use of which he became so drunk as to be incapable of knowing what he did; and that while in that condition, he was induced to sign the deed, which had been prepared by J. C. Davis, who was the attorney for the defendant, and whose name is signed as the subscribing witness to the same.

4 Exc. The plaintiff also proposed to ask this witness what consideration, if any, he received for executing the deed, to which the defendants objected, and upon their objection being overruled, excepted. The plaintiff then testified that he did not receive a cent in the way of consideration for signing the deed, and was not to do so.

5 Exc. On his cross-examination, the plaintiff was asked by defendants' counsel whether two-thirds of the cotton furnished to Bullard did not belong to the plaintiff's tenants and the proceeds thereof paid to their use? Whether the proceeds of the other third had not been, by the express agreement between the parties, applied to plaintiff's indebtedness to said Bullard? Whether he was not still indebted to Bullard for supplies furnished under the mortgage? Whether he had not got his supplies from Bullard for two years before the deed was made; and whether the deed was not made in consideration of his indebtedness to Bullard? All of which questions he answered in the negative, except that he admitted that he had received from Bullard some supplies which had been more than compensated for by the use of his land by Bullard. On his re-direct examination, he was asked by his counsel, whether he owed said Bullard anything before the execution of his mortgage to him; to which the defendant objected, and upon his objection being overruled, excepted. Plaintiff then testified that he owed Bullard nothing prior to the execution of the mortgage; that about the time the deed was executed at Laurel Hill, Bullard claimed the plaintiff owed him some two hundred and fifty dollars, but would never furnish witness a statement of his account; and that in fact, Bullard was at the time indebted to him. A. A. McKethan was then introduced as a witness for the plaintiff, and, after testifying to the fact that he had recovered the judgment against the plaintiff, and the levy of the execution upon the land, and of his having written to the plaintiff of his willingness to accept from him the principal of his debt and the costs, he stated that plaintiff and Charles W. Bullard came together to Fayetteville and paid him sixty-five dollars, which was his principal; and that he wrote the sheriff, whenever the costs were paid, to return the execution satisfied; and that there was some talk, then, between the plaintiff and Bullard whether it would not be better for the plaintiff to have the land sold. On his cross-examination, this witness stated that the debt against the plaintiff belonged to himself alone, and not to A. A. McKethan & Son, which firm was composed of witness and his son; that his son had, of course, authority to bind the firm, but had no general authority to manage the business of witness outside of the firm. The...