Peebles v. Peebles

• Decision Date: 30 June 1869
• Court: North Carolina Supreme Court
• Parties: JESSE W. PEEBLES v. JOSEPH A. PEEBLES and CHARLES H. HORTON.

63 N.C. 656

JESSE W. PEEBLES

v.JOSEPH A. PEEBLES and CHARLES H. HORTON.

Supreme Court of North Carolina.

June Term, 1869.

Courts of Equity in this State will not grant new trials of issues, sent by them to be tried at law, merely because the verdict was against the weight of evidence.

Where the issue sent for trial was, whether a certain conveyance from A to B was in fraud of C, a creditor of A, and with the direction that C should be plaintiff in the issue, and A and B co-defendants; and upon the trial declarations made by A previous to the conveyance and whilst he was in possession of the land in regard to the state of the accounts between himself and B, were allowed to be given in evidence; Held that such declarations were not competent as against B; also, that to prevent complications on a new trial, A's name should be struck out of the issue.

ISSUE, sent from the Supreme Court sitting in Equity at January Term last, to be tried at WAKE, tried by Watts, J., at Spring Term 1869.

The plaintiff, as creditor of Joseph Peebles, had filed a bill against the defendants, charging fraud in a certain conveyance of lands from such debtor to Horton, in February 1865. The defence was that Joseph Peebles owed Horton also, and had conveyed the land bona fide to pay the debt. Upon the case being opened in the Supreme Court at last term, an issue was ordered to be tried at law between Jesse Peebles as plaintiff, and Joseph A. Peebles and Charles H. Horton as defendants, involving the question of fraud.

Upon the trial the plaintiff was allowed to prove what Joseph had said several years before, whilst in possession of the land in controversy, as to the state of accounts betwixt himself and Horton, for the purpose of showing that the allegations as to the extent of indebtedness between them in 1865 was not true. The defendant excepted.

Verdict for the plaintiff.

In this Court the defendant moved for a new trial:

1. Because the verdict was against the weight of evidence.

2. Because of the admission of the declarations of Joseph Peebles.

Haywood, and Rogers & Batchelor, for the motion .

Phillips and Battle, contra .

1. The practice in regard to new trials of “issues” in North Carolina differs from that in England, 2 Hawks, 432, 1 Jon. Eq. 142, and 63 N.C. 261. Here, however, even the English practice has not been pursued on the other side, 6 Madd. 58, 3 Russ. 318. There is no such rule in England in “issues” involving the title to land, as that a second trial is given, as of course. That rule is confined to issues involving the title to an inheritance upon the issue dev. vel non, for the reason that such issue cannot be tried in equity, and therefore when sent to law, the former Court feels bound by the analogy in ejectment. Here the issue is one to the trial of which is equity is competent; and as it was a matter of discretion to order even one trial at law, much more so a second. See Van Alst v. Hunter, 5 J. Ch. 1 52, which collects all the authorities Adams' [249], Smith's Ch. Pr. 2, 74 et seg.

2. Peebles' testimony was competent, for he is a party to the record; and were he not, it was so by analogy to, Satterwhite v. Hicks, Bus. 105, Marsh v. Hampton, 5 Jon. 382, Askew v. Reynolds, 1 D. and B. 367. See also Ward v. Sanders, 6 Ire. 382, Willie v. Farley, 14 Eng. C. L. 307, Phil. Ev. (Hill and Cowen's notes,) Pt. 1, 271, and cases cited.

PEARSON, C. J.

There has been no instance since the institution of the Supreme Court of the State of North Carolina, in which the Court has ordered a new trial in a case at law, or a second trial of an issue directed by the Court acting in equity, upon the ground that the first verdict was against the weight of the evidence.

In a case at law, the Judge of the Superior Court who presides at the trial, and can see and know everything...