Saunders v. . Lee

Smith, C. J., (after stating the case.) The case stated on appeal is very vague, but we understand from it and the course of the argument here that the instruction proceeds upon the assumed necessity of the plaintiff’s offering further proof of the consideration of the deeds in order to a verdict in his favor. If there were no error in this view of the law, it is plain the plaintiff was entitled to recover against the original defendants, who are admitted to be trespassers in the unlawful possession of the land, damages for the use and detention up to the period of the purchase and conveyance to the defendant Pruden, as he could give no protection to them by at- *6 tornment or otherwise, when he had no claim to the land himself. This results from the rule that a conveyance made to defraud creditors is effectual against the bargainor, and all others, except creditors seeking to subject the property to their demand, and such as may buy under a judicial sale consequent upon such proceedings, and in the latter case the title is divested by and after such sale. As the direction to the jury is unqualified and declares, as we interpret the language, the plaintiff entitled to no relief, in submission to which the nonsuit was suffered, we should be compelled to grant a new trial for this error, if there were no other in the ruling. But aside from this, and without passing upon the proposition argued with earnestness before.us, that the recital is prima facie sufficient evidence of the valuable consideration passing betwéen the parties to the assailed deed, the present plaintiff avers his ancestor to have been a purchaser for a full and valuable consideration without notice, actual or constructive, of the fraud imputed, and that his title is consequently unaffected by the unknown presence of the vitiating element in the transaction, and as the validity of the conveyance, as such, to the bargainee Saunders, is not called in question, unless he had notice of the fraud, the recital is sufficient to sustain the consideration of the deed to him without other proof. The question is thus raised, upon whom of the parties to the suit devolves the burden of showing notice, or such facts as would put the vendee on inquiry as to the bonafides of the deed to Eure? The principle is well settled in a series of adjudications in this State, as elsewhere, that one who buys from a fraudulent grantee, for a valuable consideration and without notice, acquires a good title against the creditors of the original fraudulent grantor. Martin v. Cowles, 1 D. & B., 29; King v. Trice, 3 Ired. Eq., 568; King v. Cantrel, 4 Ired., 251; *7 Young v. Lathrop, 67 N. C., 63; Wade v. Sanders, 70 N. C., 270. The general rule which requires one who alleges fraud to prove it, would seem, upon the production and proof of the deed, to call on the defendant to show the facts that plant the infectious element in the instrument and warrant the jury in finding its presence. But the proposition finds support, not only in the reasonableness of it, but is recognized in adjudged cases in this Court. In McGahee v. Sneed, 1 D. & B. Eq., 333, it is held that when a purchaser from a fraudulent grantee seeks relief on the ground that he is an innocent purchaser without notice, he must deny notice, and so he must in an answer when he sets up the same defence to the bill of an impeaching creditor; and Gaston, J., delivering the opinion, after thus stating the rule, adds: “ The want of notice is an essential part of his equity in the one case, and of his defence in the other, and it is a general rule in pleading, that whatever is essential to the right of the party must be averred by him. “But when a plaintiff would convert a purchaser into a trustee, and seeks to charge him because he bought with notice, and therefore mala fide, if the allegation of notice is not admitted, the plaintiff is hound to prove it. Should the answer be silent, or not sufficiently explicit in this respect,"the plaintiff may except to the answer, and require.one more full and perfect. But if he does not except, and cannot prove the no-, tice, he must fail because a material part of his equity is not established.” The defendant occupies a similar relation to the plaintiff, and if he did impeach the deed to Saunders, he has offered no evidence to support the charge. But a more effectual answer is found in the fact that while the first deed is assailed for fraud in its execution, the second is not attacked in any way in the answer, and is, moreover,* *8 vindicated in the replication, and any notice of the fraud expressly denied. There is therefore error in the instruction given to the jury that “the plaintiff was not entitled to recover;” that is, has not furnished evidence of his title sufficient to warrant a verdict from the jury, and the nonsuit must be set aside and a new trial given. Error.