Pollock v. Wilcox

• Decision Date: 31 January 1873
• Court: North Carolina Supreme Court
• Parties: LEWIS M. POLLOCK v. THOMAS WILCOX and JOHN ANDREWS.

68 N.C. 46

LEWIS M. POLLOCK

v.THOMAS WILCOX and JOHN ANDREWS.

Supreme Court of North Carolina.

January Term, 1873.

When the contents of a writing come collaterally in question, such writing need not be produced, but parol evidence as to its contents will be received.

Where two notes, a part of the consideration in the purchase of a tract of land, had been destroyed by the payer after a settlement, in the usual course of business: Held, that such need not be produced on a trial, impeaching the consideration of the deed for fraud, and that parol testimony of their contents was properly allowed. Quere, as to the admissibility of the evidence, if the notes had not been lost?

( Reynolds v. Magness, 2 Ired. 26 cited and approved; White v. White, 13 Ired. 265 cited and commented on.)

CIVIL ACTION to recover possession of land and damages, tried before Clarke, J., at JONES Superior Court, Fall Term, 1872.

The plaintiff claimed the land in question under a deed from the Sheriff of Jones county, who sold the same under a judgment and execution for $1,004 against the defendant Wilcox, issued from the Superior Court of said county, at Spring Term, 1870. The plaintiff showed that Wilcox was in possession of the land at the time of the Sheriff's sale, and remained in possession until the 1st of January, 1872.

The defendant Andrews, who, on motion, had been made party defendant, read in evidence a deed from the other defendants, Wilcox and his wife, made to him 24th November, 1868, for the land in dispute, which deed had been duly proved, and registered in December following; and in which a consideration of $1,750 was acknowledged to have been received. It was also in evidence, that immediately after the execution of the deed and the private examination of the wife, at the residence of one Mrs. Franks, the grantor and grantee, the present defendants, went to the house of W. H. Bryan, the Register of Deeds of Jones County, a short distance across the street, to get him to calculate the interest on two notes, which Wilcox, the grantor, had agreed to receive in part payment for the land; that immediately upon the calculation of the interest, Andrews, in the presence of Bryan, paid Wilcox $200 in cash, and the balance of the first payment, to-wit: $250, he paid in the notes of Wilcox, and one Neathercut, the payment of the latter being by him, the said Andrews, guaranteed. At the same time, he gave Wilcox two notes, for $650 each. Plaintiff objected to the introduction of parol evidence concerning these notes, which objection being overruled, he excepted.

The defendant, Andrews, further proved, that in 1871, he paid Wilcox the amount of the two notes for $650 each, in the following manner, to-wit: $740 in cash; three notes on Wilcox for $90 each, given by him for the rent of the land for the years 1869-'70-'71, and a note on W. H. Bryan and Wm. Foy for the balance. The latter note was proved to be good. It was also in evidence that when Andrews took up the notes of $650 each, he destroyed them. The plaintiff again excepted to his Honor's allowing the witness to to speak of the notes, unless they were produced. It appeared from the evidence that $1,750 was a fair price for the land; that Andrews since his purchase of the land had rented a part thereof to Wilcox, who was his brother-in-law, for $90 per annum, and that during his tenancy, Wilcox had set out a few apple trees on the place, which he obtained from a neighbor.

In reply to some of the foregoing testimony, the plaintiff proved that Wilcox had said to him, when he signed the note as surety, upon which judgment was obtained and the land sold and bought by the plaintiff, as appears in the beginning of this statement, that he, Wilcox, “never expected to pay it.”

His Honor charged the jury, that the party alleging fraud is bound to prove it; and that the plaintiffs must by facts and circumstances show to the satisfaction of the jury, that the defendants have been guilty of fraud in devising and executing the deed from Wilcox to Andrews, which, if the plaintiff fail to do, he cannot recover. Conveyances made to hinder, delay or defraud creditors are void. So, too, are all conveyances made by men in failing circumstances, as to creditors, to be looked upon with suspicion and jealousy; and likewise those between near relations. If the transaction is secret, or attended with other suspicious circumstances, if there be a gross inadequacy of price, if the seller continues in possession of the property, using it as his own, without any satisfactory explanation, all are viewed with suspicion when the rights of creditors are concerned. But no one of these suspicious circumstances or badges of fraud is sufficient of itself, simply and alone, to invalidate a conveyence. That the fact of their being creditors will not invalidate it, nor can it be left to a jury to find fraud from that circumstance. That our Supreme Court has held, in White's case, 13 Ired. 265,“that a fraudulent conveyance for a fair price, bona fide paid, conveys a good title.”

If then, upon a candid consideration of all the facts and circumstances, the jury shall be satisfied that the transaction between Andrews and Wilcox was a bona fide transaction, for a fair price, then they will find for the defendants, but if the jury find that the transaction was a sham, a fraud, or a device to cover up the property of Wilcox, for the purpose or defrauding or hindering his creditors in realizing their claims against him, then the plaintiff is entitled to their verdict.

Verdict for ...