Davis v. . Council

SMITH, C. J. (after stating the facts). 1. The first exception presented in the record is to the ruling by which the witness Melvin, in order to corroborate the witness Davis, was permitted to testify to a conversation which passed between himself and Davis, and which had been given in evidence by the latter, as also to a conversation, consequent upon it, with the defendant, J. T. Council, showing the fraudulent arrangement planned and carried out to defeat the creditors of Davis. The declarations proceed from parties to the action — those through whose agency the feme defendant acquires the title set up to defeat it. They are moreover facts that show the common intent, which shared in by both, enters into and vitiates the conveyance from one to the other. Fraud consists in acts done with an unlawful intent, and can usually be proved in no other way than by showing the accompanying conversation between those by whom it is perpetrated. *730 But the declarations are competent upon the ground in which they were admitted by the Court; to sustain the credit of the witness Davis. He was self-impeached, in the attitude in which upon his own testimony he stood before the Court, precisely as an accomplice in crime is, who confesses his own participation in it. The witness admits his purpose in making the deed was fraudulent, and the land was left out of his schedule when he went into the bankrupt Court to escape from his debts. His credit is thus impaired as effectually as if he were impeached by proof of contradictory statements, or by the manner of cross-examination, or otherwise, and it was clearly competent to sustain his impaired credit in any authorized and proper way allowed by law, and assure confidence in his present testimony in reference to the execution of the deed and its object. It comes therefore clearly within the settled rule, which, when a witness’s credit is impeached, permits proof of similar and consistent statements before made by him, to be introduced in support of his credit. This principle in the law of evidence has been too long and too often asserted by this court to admit of being called in question because of different adjudications elsewhere. From the case of State v. Twitty, 2 Hawks, 449, in which the opinion is delivered by the first Chief Justice of this court, through the numerous cases since decided, down to that of Jones v. Jones, 80 N. C., 246, the rule has been uniformly recognized and enforced in this court. It ought to be, and must now be, deemed the law in this State, until the General Assembly shall alter it. 2. There is no exception to the instructions given, none to the refusal to give any proposed. After the jury had passed upon the issues, exception was taken to the omission to charge that the title acquired by a bona fide purchaser from a fraudulent grantee, under a deed executed prior to the title obtained by a creditor of such fraudulent grantee, must prevail over the latter. The answer to this objection is obvious. *731 1. It was not asked until after the rendition of the verdict, and, therefore, not in apt time to be given. 2. It is not pertinent to any of the issues before the jury. 3. It was not warranted upon any aspect of the evidence, since no consideration was shown, and for aught that appears, outside the recitals of the deed, it was voluntary. 4. The proposition itself is an imperfect statement of the principle of law, as it omits the material qualification, that such purchaser should not have had notice of the fraudulent character of the title of the party from whom he'derives his. Code, §1548 ; Young v. Lathrop, 67 N. C., 63; Worthy v. Caddell, 76 N. C., 82. The refusal to grant an instruction asked may be assigned for error — not an omission to give one which might have been proper if requested. Code, §412, par. 3. The stress of the argument of the appellant’s counsel was upon the plaintiff’s want of title under the assignees’ deed, because the sale was in disregard of the requirements of the bankrupt law, as shown in the case made before the Superior Court, and numerous cases were cited and commented on to show her deed to be a nullity. But no such point is presented in the case, and its consideration cannot be entertained. We have repeatedly held that cases on appeal, in the nature of bills of exception, are understood to present only such errors as are assigned, and we cannot allow defects to be searched for and made grounds of complaint not contemplated in the appeal. As we have too often said to need repetition, the only other objections that can be considei’ed, are to the jurisdiction of the court and that no cause of action is contained in the complaint, and to the complaint alone and its averments must this objection be directed. No such defect appears in the present complaint. We refer to a few of the authorities which are conclusive. Williams v. Kivett, 82 N. C., 110; Codner v. Bizzell, Ibid., 390; Drake v. Drake, Ibid., 443; State v. Hinson, Ibid. 597 : State v. Keath. 83 N. C.. 626. *732 Upon the matter of the last suggestion, we refer only to Meekins v. Tatem, 79 N. C., 546 ; Williamson v. The Canal Co., 78 N. C., 156 ; Bank v. Graham, 82 N. C., 489. We dismiss this part of the argument with the single remark that the practice ought to be understood, and it must be observed, as essential to the just and fair administration of the law .in cases brought up for review. There is no error in the record, and the judgment must be affirmed. No error. Affirmed.