Reed v. Moore

Decision Date30 June 1843
Citation25 N.C. 310,3 Ired. 310
CourtNorth Carolina Supreme Court

Although it is erroneous to submit to the jury an enquiry of fact, as to which there is no evidence; yet this Court will suppose the evidence, as stated in the case brought up from the Court below, to have been stated only in reference to the objections there raised, and will not grant a new trial, where an exception, as to the total want of evidence, does not appear to have been taken, either on the trial or on a motion for a new trial.

Where matters might have been offered in evidence on the trial, but were not, they form no ground for granting a new trial.

In an action at law against the maker of a deed, which he impeaches for fraud, the only fraud he can allege must be in procuring the execution of the deed; and therefore evidence that he was imposed upon by the other party in a contract, the performance of which this deed, subsequently executed, was intended to secure, is irrelevant and admissible.

The cases of Long v Gantly, 4 Dev. & Bat. 313. Terrell v Wiggins, 1 Ired. 172, and Gibson v Partee, 2 Dev. & Bat. 530, cited and approved.

Appeal from the Superior Court of Rockingham County, at Spring Term, 1843, his Honor Judge BATTLE presiding.

This was an action of detinue for a slave. Plea, the general issue. The plaintiff produced in evidence a deed in trust for the slave in question to the plaintiff, professing to be given to secure the payment of certain debts, which were acknowledged to be due to John and Anselm Reed. The plaintiff then called Melvin Moore, a subscribing witness, who stated, that, on the day of the date of the deed, he went to a store at Troublesome Old Iron Works, in Rockingham county, and was invited from the store to the dwelling house across the road, in which Absalom Reed, a brother of the plaintiff, lived, to witness a paper-- that he there found the plaintiff, and John and Absalom Reed, and the defendant--that the deed lay upon a table in the room in which the parties were, when the witness enquired what it was--that John Reed replied it did not matter, that the parties all agreed to it--that the witness then wrote his name as an attesting witness--that he is a nephew of the defendant--that the defendant was then sober, and, a few minutes after, went to the store, which had before belonged to the said John and Absalom Reed, and sold coffee and other goods to the witness--that, some five or six days afterwards, the witness asked the defendant what he signed, (this question was objected to by plaintiff's counsel)--that the defendant replied, he hardly knew himself, but reckoned it was a trust; that the Reeds had taken advantage of him when he was drunk or something else was the matter with him. This witness also stated upon cross-examination, that he did not remember whether the names of the defendant and other parties had been subscribed to this deed or not, when he signed, but presumed they were or he would not have signed it. The defendant's counsel asked the witness, whether the defendant was not an illiterate man, with but little education, unable to make entries and keep books, as merchants ordinarily do, and unfitted to carry on that business himself. This was objected to by the plaintiff's counsel, remarking that there was a suit in Equity, in which these matters were in contest, but the question was allowed by the court to be put. The witness answered, that his education was limited--that he could write his name, but could not write well enough to keep books, and was not suited to the mercantile business, but had traded considerably, having bought a negro woman and children shortly before. The plaintiff also called Reuben Johnson, the other subscribing witness, who testified, that he went to the store about 10 or 11 o'clock in the morning-- that soon afterwards he was asked by Absalom Reed into the house to witness the deed, and stated the same as to its attestation that Melvin Moore had done-- that he could not remember whether the names of the parties had been subscribed, when he signed, but presumed they were or he would not have signed it--that he is acquainted with the hand-writing of the defendant, and believes his signature to the deed to be genuine. He also testified, that the defendant was “pretty groggy” the evening before at sun-set, when, he attested, the defendant was sober; that he went into the store in a short time and began to sell goods, and in the course of four or five days employed the witness as a clerk in the said store--that the witness continued some weeks, until a son of the defendant's returned from the lower part of the State, when they kept the store together, until the witness left the store in the possession of the son.--The plaintiff also proved a demand of the store, after the expiration of the time allowed for payment in the trust deed and before this action was brought--also that the defendant some twelve months before, had applied to a merchant to take his son as a clerk, saying he desired him to become acquainted with his business. The defendant called no witnesses. His counsel insisted that the deed did not pass the property in the slave for want of a pecuniary consideration, that there was not sufficient evidence of the delivery of the deed, and that the defendant was drunk or fraudulently imposed on at the time of delivery, if he delivered it at all.

The Court held, that the deed, being a sealed instrument, was good to transfer the property in the slave, without the insertion of a pecuniary consideration, and instructed the jury, that it was incumbent on the plaintiff to prove the due...

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8 cases
  • Thomas v. Merritt
    • United States
    • United States State Supreme Court of North Carolina
    • November 4, 1925
    ...McArthur v. Johnson, 61 N. C. 317, 93 Am. Dec. 593; Gwynn v. Hodge, 49 N. C. 168; Canoy v. Troutman, 29 N. C. 155; Reed v. Moore, 25 N. C. 310; Logan v. Simmons, 18 N. C. 13. It was said by Pearson, J., in Devereux v. Burgwin, 33 N. C. 493, that:. "Under the plea of 'non est factum, ' if th......
  • Furst & Thomas v. Merritt
    • United States
    • United States State Supreme Court of North Carolina
    • November 4, 1925
    ...only voidable. McArthur v. Johnson, 61 N.C. 317, 93 Am. Dec. 593; Gwynn v. Hodge, 49 N.C. 168; Canoy v. Troutman, 29 N.C. 155; Reed v. Moore, 25 N.C. 310; Logan Simmons, 18 N.C. 13. It was said by Pearson, J., in Devereux v. Burgwin, 33 N.C. 493, that: "Under the plea of 'non est factum,' i......
  • The Board of Regents of The Kansas State Agricultural College v. Linscott
    • United States
    • United States State Supreme Court of Kansas
    • July 1, 1883
  • Jennet Smith, Calvin Powe, and Thomas Powe, Plaintiffs In Error v. Joseph Kernochen
    • United States
    • United States Supreme Court
    • January 1, 1849
    ...172; Newman v. Chapman, 2 Rand. 93; Thomaston Bank v. Stimpson, 21 Maine, 195; Smith v. Hubbs's Adm'r, 1 Fairfield, 71; Reed v. Moore, 3 Ired. 310; Logan v. Simmons, 1 Dev. & Batt. 16. See, also, 7 Johns. 160; 4 Mass. 355; 4 Hill, 424; 3 Ves. 612; Cro. Jac. 270; 16 Johns. 189. Page 215 All ......
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