Eigenbrun v. Smith

Davis, J., (after stating the ease). 1. The first instruction to the jury asked for by the plaintiff was given, with a substitution of the words “ affair price ” [215] in lieu of the words “ for value,” and there was no error in this -of which the plaintiff could complain. It was as favorable as he could ask. The evidence tended to show that the plaintiff knew that there were executions in the hands of the sheriff. In Beals v. Guernsey, 8 Johnson, 446, it is said •' “ The rule is, that the purchaser, knowing of the judgment, must purchase with the view and purpose to defeat the creditors’ execution; and if he does it with that purpose it is fraudulent, notwithstanding he may give a full price. The question of fraud depends upon the motive. The purchase must be bona fide, as well as upon good consideration. This was the rule as declared by Lord Mansfield upon repeated occasions.” The knowledge of the fact that the sheriff was seeking to subject the property to the satisfaction of executions in his hands would not, of itself, invalidate the purchase by the plaintiff, but if he purchased with a view to defeat the remedy of creditors in relation to the goods purchased, even though he gave “ a fair price,” the validity of the sale may well be questioned. Wickham v. Miller, 12 Johnson, 320; Palmer v. Giles, 5 Jones’ Eq., 75. 2. The second instruction asked for was given with the addition, “ provided those debts were a fair price for the goods.” What has just been said applies equally to this exception, and there was no error in the modification of the prayer. We only refer to the plaintiff’s exception to the “entire charge” of his Honor, (which is insufficient as an exception) to say That it was a plain, clear, fair and full exposition of the law as applicable to the evidence submitted to the jury, in which we can see no error. As to the alleged grounds for a new trial; 1st. When the case of Frank v. Robinson was before this Court at the last term, (96 N. C., 28), referring to the provision in the deed in regard to the employment of the as [216] signors at a compensation of $50'each per month, the Court said that it furnished “ evidence of a fraudulent intent, proper, with other facts attending the transaction, to be submitted to a jury.” It devolved upon the defendants, who were attacking the deed, to show the “facts and attending circumstances,” if any, to satisfy the jury that the deed was fraudulent, and the suggestion of his Honor “in the interest of time” and the clear intimation that the laboring oar was upon the defendants, could in no way prejudice the plaintiff; at all events there was no objection interposed, and if, upon the cross-examination of the witnesses for the plaintiff, the defendants were satisfied that the facts and circumstances elicited were sufficient to establish the negative of the issue, they were not obliged to introduce testimony, and it was the mistake of the plaintiff, for which the Court was in no wise responsible, if he “ lost the evidence of his three most important witnesses.” He had a right “to prove his case, in his own way, and by his own evidence,” and the defendants had an equal right to prove their case, if they could, by plaintiffs witnesses, and the case of Davenport v. McKee, 94 N. C., 325, cited by counsel for plaintiff, has no application. When upon the announcement of the plaintiff that he had closed his case, the defendants said they would introduce no testimony, if a request had been made by him for leave to introduce further testimony, it would, no doubt, have been granted, and he could have had the benefit of the important testimony which had been “ held back,” but no such request was made, and he seems to have been satisfied to go to the jury upon the testimony offered, and this presents no ground for a new trial. 2d. The complaint in the case of Frank & Aydlet v. Robininson & Holt, was not competent evidence, and was properly excluded. [217] 3d. The ground for a new trial, based upon alleged error in his Honor’s charge, has no foundation. It was insisted on behalf of the trustee that the sale to the plaintiff should be sustained, because it was a disposition of the goods advantageous to the cestui qui trusts, and we are referred to Burrill on Assignments, 459. His Honor charged the jury that it was not necessary that the trustee should participate in or know the intent with which the deed was made, and his bonafides could not affect it. There is no error. No error. Affirmed.