Satterwhite v. Hicks

• Decision Date: 31 December 1852
• Citation: 44 N.C. 105,57 Am.Dec. 577
• Court: North Carolina Supreme Court
• Parties: JOHN SATTERWHITE v. JOSEPH M. HICKS.

44 N.C. 105

57 Am.Dec. 577

JOHN SATTERWHITE

v.JOSEPH M. HICKS.

Supreme Court of North Carolina.

December Term, 1852.

The declarations of a person under whom a party derives title, made before, or simultaneously with, the sale, are admissible in evidence by the other party, to show fraud in the sale.

Though, ordinarily, he who alleges fraud must prove it, the rule does not extend to a case where, upon a question of consideration in the sale of a slave, the vendor, vendee and subscribing witness thereto were brothers-in-law, and the vendor at the time was sued for debt, and insolvent.

Whenever, in the trial of a cause a point arises, which it is important to either party to sustain, and there is no evidence offered upon it, it is not only no error in the Judge so to inform the jury, but it is his duty.

Where, therefore, upon a question of fraud, the plaintiff put in evidence certain bonds having no subscribing witness, to show the consideration for the bill of sale under which he claimed, and it did not appear that the bonds were ever seen by any one before the trial:-- Held that it was no violation of the Act of Assembly, (ch. 31, sec. 136,) by the Judge below, to charge the jury that “the existence of said bonds was unknown to any one, except the parties, until they were produced upon the trial.”

(The cases of Johnson v. Patterson, 2 Hawks 183; Guy v. Hall, 3 Mur. 150; May v. Gentry, 4 Dev. & Bat. 117; Hawkins v. Alston, 4 Ire Eq. 137, and Black v. Wright, 9 Ire. 447, cited and approved.)

THIS was an action of DETINUE for two slaves, tried before his Honor, Judge DICK, on the last Circuit at Granville. Plea-- the general issue.

Joseph Satterwhite, the brother-in-law of the plaintiff, conveyed the slaves to him for the alleged price of $1200. This deed was attested by Thomas Satterwhite, another brother-in-law. The plaintiff proved by the attesting witness, that he was sent for to the house of the plaintiff, where he found Joseph, who said that he was smartly indebted to John, and was about to sell him the two negroes in dispute. After the deed was executed, it was proposed by the plaintiff to Joseph to have a settlement, and the former went to his desk and took out a paper or papers, and asked the latter if he had that little paper he gave him some time ago, who replied that he had not--it was at home; and John then proposed to go to Joseph's house to make the settlement, and the witness Thomas was asked to go with them to witness the settlement, but did not go. The plaintiff then gave in evidence four several bonds, executed by Joseph to him at different times, for sums amounting in the whole to $1578.

At the time of the execution of the bill of sale, Joseph was largely indebted beyond his means to pay, and a writ had issued against him for the collection of one of his debts, which was prosecuted to judgment; upon which an execution was levied on the negroes in question, and at the sheriff's sale, the defendant bought them and took them into possession. On the part of the defendant, it was alleged tbat the bill of sale was intended to defraud the creditors of Joseph. That if Joseph owed the plaintiff any thing, it was a very small sum, and the bonds offered in evidence were without consideration. The defendant offered to prove that Joseph, before the execution of the bill of sale, had said he was not embarrassed, and did not owe, of his own debts, more than $250: This evidence was objected to by the plaintiff, but admitted by his Honor. Evidence was also given by the plaintiff, tending to prove that the bonds were given for debts bona fide due; and by the defendants, to show that they were given for fictitious demands. His Honor, the presiding Judge, was asked by the plaintiff's counsel to charge the jury, that the proof of the execution of the bill of sale, and that the parties thereto said it was made in consideration of Joseph's indebtedness to the plaintiff, and the further proof of the execution of the bonds, did, if the jury believed the evidence, make out a prima facie case for the plaintiff, and put the burden on the defendant to show the transaction to be fraudulent. This instruction his Honor refused, and charged the jury that as the parties to the bill of sale were brothers-in-law, and the bonds without a subscribing witness, and their existence unknown to any one except the parties, until they were produced on the first trial of this cause, something more than the mere production and proof of the bonds was necessary to constitute a prima facie good consideration, as against a purchaser at execution sale. His Honor further charged the jury, that if they were satisfied from all the testimony, that the sale from Joseph Satterwhite to the plaintiff was a bona fide transaction, they should find for the plaintiff-- otherwise, for the defendant. There was a verdict for the defendant, and a rule for a new trial, for the admission of improper testimony and for misdirection; and the rule being discharged, and judgment rendered on the verdict, the plaintiff appealed.

Miller, for the plaintiff .

Lanier, J. H. Bryan and Gilliam, for the defendant .

NASH, C. J.

The first objection raised in the plaintiff's bill of exceptions is to the reception of the ante-declarations of Joseph Satterwhite. His Honor committed no error in this particular. It is a general principle in the law of evidence, that any fact to be proved against a party ought to be proved in his presence, by the testimony of witnesses duly sworn or qualified to tell the truth. Hearsay, therefore, is not admitted in our Courts of Justice, because it is but a statement which a witness gives, of what he professes to have heard a third person say. This rule is as old as the common law. To it, however, there are exceptions coeval with it: such, for instance, of dying declarations, pedigree, and others,...