Peebles v. . Horton

Peabsoe, C. J. After a careful examination of the trans-script we are satisfied that there has been a “fair trial.” When issues of fact are sent to the Court below to be submitted to a jury, this Court is not disposed to set aside the verdict, and will never do so, except for manifest error: interest rei-ptiblicce tit sit Jims litimn. The instruction: “The fact that the consideration set out. in the deed was $4,000, did not per se render the deed fraudulent; but in questions of fraud the jury were at liberty to take it into consideration together with the other circumstances;” is in our opinion fully responsive to the instruction .asked for, and “hits the mark precisely:” for it cannot be .supposed, that the latter part of the instruction was worded for the purpose of leaving out of consideration the question of ltona fides, and bringing it down to the mere matter of a valuable consideration. If so, why talk about “a fair and reasonable price for the land, in money or in money’s worth, or in debts due to him by the said Joseph A. Peebles”? Taking the proposition abstractly, $100 was a valuable consideration; and if that was the meaning, a reference to the value of the land was impertinent. His Honor took the right view of the instruction asked, and gave the proper response. 2. If a weak old man is induced to execute a deed “in an out of the way place,” and with secrecy, this is a eircum- *377 stance entitled to much weight in passing on the question of imposition, so, if one promises a brother-in-law, no one-else being present except another brother-in-law (to witness-the deed) to execute a deed for his property, purporting to-be in consideration of $4,000, made up of old debts, to the exclusion of his other creditors, this is a suspicious circumstance, or as his Honor calls it a “badge of fraud;” that is, a fact calculated to throw suspicion on the transaction, and calls for explanation. So, if the bargainee, to meet the charge of combination to commit a fraud, is content, to offer himself as a witness to explain the transaction, and does-not call his brother-in-law, the bargainor, who is present in Court; that circumstance is calculated to ‘excite suspicion,, and transpiring in the presence of the jury will, of course,, have its effect upon their minds. The ruling of his Honor, to allow full comments on both sides, was proper to aid the jury by a full discussion, to-determine how much weight ought to be given to it, and whether in point of fact the witness was not called, because-the bargainee, who had peculiar means of knowing what he would swear, was afraid to trust him; or whether it was a mere question of professional skill between the attorneys on either side. An order of removal because the party cannot have a fair trial in his own county, Bumgarner v. Manney, 10 Ire. 121; the fact that a party does not choose to make a witness of himself, Devries v. Haywood, 63 N. C. 53; are not embraced by the principle, that the jury ought to have all of the lights that can he made available, in the dark trailing after fraud that seeks to hide its tracks. The principle is well settled, whilst the exceptions to it rest upon peculiar circumstances. According to our judgment, this case falls under the general principle. A jury is necessarily influenced by the fact, that the maker of a deed which is attacked for fraud, is not called to give a full explanation, *378 ancl that the bargainee, who is a party to the suit, chooses to put the matter upon his own oath. Pee Curiam. No error.