Young v. Booe

• Decision Date: 31 August 1850
• Citation: 11 Ired. 347,33 N.C. 347
• Court: North Carolina Supreme Court
• Parties: THOMAS M. YOUNG v. MARTIN BOOE et al.

11 Ired. 347

33 N.C. 347

THOMAS M. YOUNG

v.MARTIN BOOE et al.

Supreme Court of North Carolina.

August Term, 1850.

When a deed of trust for the payment of debts conveys a cotton factory &c., and in the deed are provisions, that the maker of the deed shall retain possession for eleven months and during that time his family may be supported out of the proceeds of the factory, Held, that these provisions did not make the deed fraudulent in law, upon its face, but, as the provisions might have been for the benefit of the creditors, as well as of the debtor, the question of fraudulent intent was one, upon which the jury must decide under all the circumstances.

Appeal from the Superior Court of Law of Davie County, at the Spring Term 1850, his Honor Judge DICK presiding.

This action is trover for a parcel of blacksmiths' tools, and the plea “not guilty.” The plaintiff claims under a deed of trust made to him by Thomas McNeily, on the 2d of February 1849, and registered the same day. The deed conveyed to the plaintiff a piece of ground near Mocksville, containing 16 acres, known as the factory lot, on which are situated, the cotton factory building and other out buildings, together with the steam engine, grist mill, three wool carding machines, and all the cotton machinery, consisting of four cotton cards, pickers, drawing frames, two speeders, one card grinder, four frames containing 504 spindles, four reels, one banding machine, one yarn press and all the battins, one turning lathe with all its tools, and a variety of other tools, all the raw cotton on hand, and all the factory wood on hand: also a lot adjoining, containing one acre: also another lot, on which there is a blacksmith's shop, with all the smith's tools and one new wagon partly ironed: one house and lot, wherein McNeily resided, and his store house and lot, and all his household and kitchen furniture and library, and three horses and another wagon and gear, four head of cattle, all his corn, wheat, oats, hay, and fodder and four slaves: and the deed further assigned to the plaintiff all debts owing to McNeily by bond, note, account or otherwise, and all other property whatsoever, whether real or personal, to which the grantor was in any wise entitled: Upon trust, that the whole or such parts of the property, as should remain undisposed of, on the 1st day January 1850, should, after due notice, be sold by Young at public auction to the highest bidder upon a limited credit, and that, in the mean while, any part of the property might be sold at private sale, should a reasonable price be offered: and that, until such public sale, McNeily should remain in the possession and management of the property, as the agent of the trustee, and might also make private sales thereof as aforesaid, and that he should, “as early as practicable,” make out a complete list of all the judgments, bonds, notes and other debts of every description belonging to him, for the said Young: and that, out of the proceeds of such sales and with the sums collected on the debts, all necessary expenses of executing the trusts should first be paid by the said Young, and then certain enumerated debts, for which persons were bound as sureties: and thirdly, certain other debts specified, and also all others, which the said McNeily then owed, whether particularly mentioned therein or not--the said debts to be fully paid, if the fund should be sufficient therefor, and, if not, they should be paid pro rata. The deed then adds, “It is understood and agreed that the said McNeily is to support his family upon the property hereby conveyed, until this trust is closed by a sale of the property.”

A short time after the execution of the deed, a judgment was rendered by a justice of the peace for one of the debts mentioned in the deed, and an execution issued thereon, under which ...