Atlantic Joint Stock Land Bank of Raleigh v. Finch

ClaeksoN, J. We see no prejudicial error in tbe peremptory instructions given by tbe court below. It may be noted that tbe plaintiff introduced as its witnesses tbe three parties primarily involved in this controversy, N. B. Eincb, bis wife Bettie D. Eincb, the father and mother, and N. H. (Herman) Eincb, tbe son — a young minister. N. B. Eincb and bis wife, Bettie D. Eincb, testified that they bad no intention or purpose in their minds to defraud tbe plaintiff, and tbe son testified that be bad no knowledge of any fraud on their part. “Even if they bad been attempting to defraud their creditors I would not bave participated in it, and I did not.” It was in evidence that tbe “borne place” in Spring Hope, N. C., was worth about tbe $100 and tbe principal and interest on tbe notes held by N. H. (Herman) Eincb. When tbe conveyance was made by tbe father and mother to tbe son, tbe $30,000 mortgage bad been reduced to some $25,000. Tbe father testified “In my opinion tbe security held by tbe Land Bank in its mortgage was amply sufficient to pay tbe debt at tbe time my wife and I conveyed tbe borne place to our son, N. II. (Herman) Eincb.” •In tbe case of Aman v. Walker, 165 N. C., in tbe fourth declaration of principles, contained in that case, at page 227, tbe Court speaking to *296 the subject, said: “(4) If the conveyance is upon a valuable consideration and made with the actual intent to defraud creditors upon the part of the grantor alone, not participated in by the grantee and of which intent he had no notice, it is valid.” Naturally the mother, on account of everything being swept away from them by the deflated conditions, thought the notes of small value. She “knew that Mr. Finch had nothing to pay them with,” yet she further testified “I conveyed the place to my son to pay off a debt of my husband, which my husband had neglected to pay off 4 or 5 years.” In McCanless v. Flinchum, 89 N. C., at pp. 374-5, the following observations are made: Every sale of real or personal property made to a son by his father, at the time embarrassed with debts beyond his ability to pay them, is not necessarily fraudulent and void as to creditors. If the son honestly buys the land or other property from the father in such circumstances, and pays for it a fair price, such a sale is good and valid as to everybody, and it stands on the same footing as if it had been made to a stranger. There is no reason why a father unable to pay his debts may not sell his property to his son, and the only difference between such a sale and one to a stranger is, that the close relationship between the father and son, if the bona fide of the sale shall be questioned, is a circumstance of suspicion, and evidence tending to show a fraudulent intent.” Bank v. Lewis, 201 N. C., 155-6. The contentions of plaintiff are not bourne out by the evidence. In Denny v. Snow, 199 N. C., at p. 774, the principle is thus stated: “ 'A verdict or finding must rest upon facts proved, or at least upon facts of which there is substantial evidence, and cannot rest upon mere surmise, speculation, conjecture, or suspicion. There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.’ 23 C. J., pp. 51-52; S. v. Johnson, 199 N. C., 429.” Shuford v. Scruggs, 201 N. C., at p. 687. We have it admitted on this record that at the time that N. B. Finch and wife, Bettie D. Finch conveyed the 1,200 acres of land to plaintiff bank, to borrow $30,000, the land at plaintiff’s appraisal was worth $60,000. The Finches reduced the debt to $25,000, and believed that the land was fully sufficient to bring the mortgage debt on it. Mrs. Finch was only surety for her husband. Plaintiff now; owns the land under foreclosure proceeding that it appraised a few years before at $60,000. It has a judgment against Mr. and Mrs. Finch for $10,000 and in this proceeding is charging this old man, 74 years of age, and his wife and *297 minister son with fraud, because the son had purchased the land at a valuable consideration and let the old folks, in their old age, live in this home place. Defendants, in their brief, say: “Who could have foreseen the shrinkage in the value of lands that has occurred ? Who could have made provision against the catastrophic losses that have come to those we cata-logue as the ‘great middle class’ in North Carolina? In 1925, a man with 1,200 acres of highly improved intensively cultivated farm lands in Nash County, accounted himself, and was reasonably accounted by his neighbors, a wealthy man. Such lands were selling at $100.00 per acre. In 1930, we suddenly waked up to the full significance of the term ‘land poor.’ Like a thief in the night, this condition came upon us, and the man, who had incurred debt, when a dollar contained only fifty cents in value, was called upon to pay back that dollar when it contained two dollars in value.” In the judgment below, we find, No error.