Mitchell v. Eure

• Decision Date: 27 February 1900
• Court: North Carolina Supreme Court
• Parties: MITCHELL v. EURE et al.

35 S.E. 190

126 N.C. 77

MITCHELL

v.EURE et al.

Supreme Court of North Carolina.

Feb. 27, 1900.

FRAUDULENT CONVEYANCES—ASSIGNMENTS-RELATIVES—BURDEN OF PROOF— FRAUDULENT INTENT.

1. Where an insolvent son assigned his property in trust to secure his debt to his father, as against another creditor, the burden of proof is on him to establish the bona fides of the transaction.

2. Where a son assigned his property in trust to secure his debt to his father, with intent to defraud other creditors, the transfer was void, though neither the trustee nor the father knew of, or participated in, the fraud.

3. A purchaser who refused to deliver a conditional bill of sale which showed title in the seller, till the conditions were performed, because it was in the possession of his attorney, was guilty of wrongfully detaining it, when it was in his power to obtain and deliver it.

Appeal from superior court, Bertie county; Allen, Judge.

Action by C. W. Mitchell against W. J. Eure and others. From a judgment for plaintiff, defendants appeal. Affirmed.

R. B. Peebles and C. G. Peebles, for appellants.

Francis D. Winston, for appellee.

MONTGOMERY, J. The three defendants Eure bought a stock of merchandise from A. L. Burden at the price of $867.58, and executed their promissory note for the amount to Burden. At the same time a written agreement was entered into between the parties to the effect that the title to the goods was to remain in Burden until the note should be paid, —the payments to be made in the sum of at least $20 during each month, —while the Eures were to take possession of the goods and sell them, at the same time replenishing the stock. The agreement containing the conditions of the sale was reduced to writing and delivered to Burden, but was never registered. Afterwards the defendants Eure executed a deed of trust to the other defendant, J. W. White, trustee, to secure an amount of money alleged to be due to their father; Burden in the meantime having assigned the note to the plaintiff, Mitchell. This action was commenced to set aside the assignment made by the Eures to White, trustee, on the ground that it was fraudulent and void, because it was made with intent to hinder, delay, and defeat the plaintiff in the collection of his debt, and also for the purpose of recovering the possession of the agreement referred to between Burden and the Eures, containing the conditions of the sale, which the plaintiff alleged the Eures bad gotten into possession of, and wrongfully detained from them. Two issues were submitted, —one as to whether the assignment was made with intent to hinder and defeat the collection of the note and to defraud the plaintiff; and the other, whether at the time of bringing the suit the Eures wrongfully detained the paper writing.

The defendants made exception to that part of the charge of the court concerning business transactions...