Peebles v. Horton

• Decision Date: 31 January 1870
• Citation: 64 N.C. 374
• Court: North Carolina Supreme Court
• Parties: JESSE W. PEEBLES v. CHARLES H. HORTON.

64 N.C. 374

JESSE W. PEEBLES

v.CHARLES H. HORTON.

Supreme Court of North Carolina.

January Term, 1870.

*1 Upon an issue of fraud in regard to a conveyance of land, it appeared that the consideration set out, was $4000, whilst there was evidence that it was considerably less; thereupon the vendee ( defendant) asked the Court to instruct the jury that it was not incumbent upon him to prove that he had given exactly that amount, so that it were shown that he had given a fair and reasonable price; Held, that instructions, in reply to this prayer, That the fact, that the consideration set out in the deed was $4000, did not per se render the deed fraudulent; but that in questions of fraud, the jury were at liberty to take it into consideration together with other circumstances, are responsive and correct.

That the only parties present, in February 1865, at a conveyance of all of the vendor's land in satisfaction of old debts, were the vendor and vendee, who were brothers-in-law, and the subscribing witness, also a brother-in-law of the vendee, is a fact calculated to throw suspicion upon the transaction, i. e, is a badge of fraud.

That a defendant declines to call as a witness in regard to a transaction to which he was a party, a disinterested and unimpeached person, then known by him to be present in Court; and instead, becomes a witness in regard to such transaction himself--it being the very matter in question in such suit--is also calculated to excite suspicion; and instructions thereupon, That, it was not evidence of fraud by itself, but considerable latitude is permitted to counsel in such matters, and, under the circumstances the plaintiff's counsel were at liberty to comment upon it as a badge of fraud, and the jury may consider of it in making up their verdict, are correct.

( Bumgarner v. Manney, 10 Ire. 121, and Devries v. Haywood, 63 N. C. 53, cited and approved)

NOTE.--See Peebles v. Peebles, 63 N. C. 656.

ISSUES, from the Supreme Court, tried before Watts, J., at January Special Term 1870 of Wake Court.

It is the same case that is reported, upon a former trial of it, in 63 N. C. 656, as Peebles v. Peebles.

The deed, which was impeached by the plaintiff as fraudulent against himself, as one of the creditors of Joseph A. Peebles, the bargainor, had been executed February 26 1865, by said Joseph to the defendant, who was his brother-in-law, for the expressed consideration of $4,000, alleged to have been paid in debts (seven-eighths being old, i. e. antewar,) due by the bargainor to the defendant. The only other person present at its execution, was one Weathers, also a brother-in-law of Horton.

There was evidence tending to show that the true consideration was considerably less than $4,000.

1. Upon the point of consideration, the counsel for the defendant asked the Court to instruct the jury, That it was not necessary for Horton to show that Joseph Peebles owed him the full sum of $4,000 when the deed was executed, in order to establish that it was bona fide and upon a valuable consideration, but, that, in order to establish a valuable consideration, it was only necessary to show that he paid a fair and reasonable price for the land, in money or money's worth.

*2 In reply to this, his Honor instructed the jury, That the fact, that the consideration set out, was $4,000, did not per se render the deed fraudulent; but in questions of fraud the jury were at liberty to take it into consideration, together with other circumstances.

2. The counsel for the plaintiff, in addressing the jury, commented upon the fact that the defendant had chosen to become a witness himself, and not to introduce Joseph A. Peebles, who he alleged, was not pecuniarily interested, and who knew all about the creation of the alleged debts, and the negotiation for the purchase of the land:--as casting suspicion upon the defendant's case, &c.

The counsel for the defendant asked the Court to instruct the jury, that the plaintiff's cou...