Wiseman v. . Penland

Rodman, J. The plaintiff’s case is this. Bedford Wise-man w’as seized of the locus in quo and on the 1st of Jan *199 uary, 1850, and by a voluntary deed conveyed it to his son, Ensor C. "Wiseman. This deed was not proved until June 'Term, 1867, of Mitchell County Court, when it was proved .and registered. Ensor, in 1850, was only twelve years of .age. There was evidence tending to prove that soon after ■the date of the deed, he took possession of the land and cultivated it upon his own account for several years; while there was also evidence that it rémained under the control and substantially in the possession of his father. In March, 1871, Ensor sold the land for value to the plaintiff. The defendant claims as purchaser at an execution sale in September, 1859, under a judgment recovered by one Cowles at Spring Term, 1859, of Mitchell County Court, ■upon a note given by Bedford Wiseman on the 7th of May, 1858. The defendant contended that the deed from Bed-ford Wiseman in 1850 was fraudulent and void as to his ■creditors; but there was evidence to prove that Bedford did not owe any debt in 1850, and retained property worth $800 or thereabout; and there was no evidence that he -ever owed any debt except this one to Cowles contracted in 1858. The long delay in registering the deed was certainly evidence of a secret trust for himself; but it is only evidence tending to prove a fraud, and not conclusive; and the J udge left the whole question of bona fides in making the deed, fairly and clearly to the jury, and they found that-the deed from Bedford Wiseman was not made with any fraudulent intent. This rendered any finding as to the purchase by the plaintiff immaterial. The defendant entered several exceptions to the ruling -of the Judge as to the competency of evidence :— 1. The defendant offered to prove that Aden A. Wise-man, one of the defendants, when dispossessing the plaintiff said that he was acting as sheriff. It does not otherwise appear that Wiseman was sheriff, or that he had any ^execution in his hands. If that had appeared, any declara *200 tion of his that he was acting as sheriff was superfluous and if that did not appear, such a declaration, though evidence of the character in which he was professing to act,, would not be evidence of his power. In any point of view so far as appears from the case, it was immaterial. Exception overruled. 2. The manner in which judgment was taken was immaterial. Exception overruled. 3. Exception overruled for the reason given by the Judge. 4. Exception overruled. The recital of the testimony by the Judge was expressly waived by the parties. The defendant filed ten exceptions to the instructions of the Judge to the jury. It would be tedious and unprofitable to consider them in detail. We are clearly of opinion that none of them can be sustained. The instructions were-full, fair and correct. The objection that the complaint is defective, in that, it-does not positively allege that defendants are in possession, but only that “ they withhold ” the land, was taken for the first time in this Court. It is unnecessary to say whether it would have been good on demurrer, or not. If it had been taken in that way, the complaint might have beem amended ; certainly it is cured by the verdict. The objection to the probate of the deed from Ensor Wiseman, that-it does not appear to have been acknowledged by him,, seems to be incorrect in part. At all events it was not. taken below and must be disregarded. No error. Per Curiam. Judgment affirmed..