W. Devries & Co. v. Phillips

• Decision Date: 30 June 1868
• Citation: 63 N.C. 53
• Court: North Carolina Supreme Court
• Parties: W. DEVRIES & CO., v. E. L. PHILLIPS and MOSES HAYWOOD.

63 N.C. 53

W. DEVRIES & CO.,

v.E. L. PHILLIPS and MOSES HAYWOOD.

Supreme Court of North Carolina.

June Term, 1868.

A conveyance to pay a bona fide debt, if made by the debtor with a fraudulent intent is void.

Counsel have no right during the argument of a case to make observations upon the fact that the other party to the cause has not come forward as a witness therein.

ORIGINAL ATTACHMENT, tried before Barnes, J., at Spring Term 1868 of the Superior Court of CUMBERLAND.

The attachment having issued against Phillips, for a debt due to the plaintiffs, was levied upon goods which were claimed by Haywood, who was allowed to interplead. Haywood claimed under a bill of sale from Phillips, and this title was impeached as fraudulent and void as to the plaintiffs, who were creditors of the latter. There was evidence tending to show such fraud.

Upon this part of the case the Court charged “that if the conveyance were made for a bona fide debt and without any fraudulent intent, it passed the title to the goods even as against the creditors of Phillips:” also at another point, “that the deed is absolute upon its face, and there is no evidence of a trust. The debtor conveys absolutely to his creditor, and if it were to pay a bona fide debt it will be upheld though the debtor made it with a fraudulent intent.”

The other portions of the charge in this connection are not material here.

Moses Haywood, one of the defendants, was present in Court, and did not tender himself as a witness. The plaintiff's counsel asked the Court to charge that as the facts of the case were peculiarly within his knowledge, the circumstances that he did not tender himself as a witness in his own behalf, required them to presume the facts as to which he might have testified, most strongly against him. The Court charged the jury that they might consider this fact, and attach such weight as they thought it entitled to. Also, that as the plaintiffs could have compelled Haywood to become a witness in the cause, the circumstance that they had not done so might also be considered by them.

Verdict in favor of Haywood; rule for new trial discharged; judgment, and appeal.

Fuller and Merrimon, for the appellant .

No counsel, contra.

READE, J.

His Honor charged the jury that, “If the conveyance were to pay a bona fide debt, it will be upheld though the debtor made it with a fraudulent intent.” This cannot be maintained. We think it probable that the case does not state the charge with sufficient accuracy, because in another portion of it, we find the instruction to the jury was, that the conveyance would be good “against creditors if made for a bona fide debt, and without any fraudulent intent.” We do not doubt that the impression which his Honor designed to make upon the jury was, that if the conveyance was to pay a bona fide debt, it would be upheld, although the effect of it was to hinder and delay other creditors, and although the purpose of the debtor was to prefer one creditor to another.

But, as stated in the case for this Court, the charge is so broad that we cannot sustain it. It is stated that there was evidence tending to show fraud, and his Honor instructed the jury that there were badges of fraud upon the conveyauce itself; yet, notwithstanding all this, if the debt intended to be secured was bona fide, the conveyance must be upheld.

This is the same as to say that no conveyance to secure a bona fide debt can be fraudulent. And yet it is well settled, that a conveyance to secure a bona fide debt, or for a valuable consideration, will be fraudulent if made for the ease and favor of the debtor, or to hinder and delay creditors.

For this error there must be a new trial.

We think it proper to notice another exception, as it is one which may be taken in every case.

His Honor was asked to charge the jury, that, inasmuch as the defendant was a competent witness, the fact that he did not offer himself as a witness in his own behalf, authorized the jury to presume the facts against him. His Honor declined to give the instruction, but charged the jury that they might consider the circumstance, and give to it what weight they thought proper: as th...