Gilmer v. . Earnhardt , 46 N.C. 559 ( 1854 )

The question upon which the opinion of the Court proceeds, arises, upon a deed of trust, under which the defendant claimed title to the premises in question, which was attacked as being fraudulent and void as to creditors; this deed was dated the 28th of January, and the sale was to be on the 1st day of November next, on a credit of six months. The counsel for the plaintiff asked his Honor to instruct the jury that the long postponement of the sale, and then the credit of six months, of themselves, authorized the presumption of a fraudulent intention on the part of the maker of the trusts, and made it void in law.

But his Honor declined so to charge, and instructed them that any open provision or stipulation whereby the debtor provided for any enjoyment and use of the property, or any benefit or advantage to himself from the Trustee or the creditors, as a home for himself or his family, would be fraudulent, but he did not perceive anything of that kind in the deed, and did not feel authorized to say that, upon its face, it created a presumption of fraud. Plaintiff excepted to this part of the charge.

He went on to explain the principles, in other respects, governing the case, to which there was no exception.

Verdict for the defendant. Motion for a venire de novo. Rule discharged and appeal. In declining to give the instruction which was prayed by the plaintiff's counsel, his Honor was fully supported by the authority of the cases of CANNON v. PEEBLES, 4 Ired. Rep. 204; LEE v. FLANNIGAN, 7 Ired. 471; YOUNG v. BOOE, 11 Ired. 347; HARDY v. SKINNER, 9 Ired. 191, and HARDY v. SIMPSON, 13 Ired. 132. The deed in trust contains no stipulation that the debtor should retain possession of and use the property conveyed until the sale; and it might well be, that the postponement of the sale, for nine months after the deed was executed, and the provision for selling upon six month's credit, instead of for cash, was intended to operate, and did operate for the benefit of all the creditors. Still, if the deed was made with the intention to hinder, delay or defraud the creditors, of the bargainor or any of them, it was void; and upon that question, the plaintiff has no just cause to complain of the instructions which his Honor gave to the jury. They were as favorable to him as he had any right to require; and whether they were not more so, it is unnecessary for us to decide.

The whole subject has been so fully, as well, and so recently discussed in the cases to which we have referred, that we deem it useless to add anything more.

The judgment is affirmed.