Johnson v. Taylor, 15 N.C. 355, 4 Dev. 355 (1833)

Dec. 1833 · Supreme Court of North Carolina

15 N.C. 355, 4 Dev. 355

Charles E. Johnson v. Patty Taylor.

lñ debt on bond, where the defendant offers a deed to the plaintiff in evidence, and relies on the consideration money therein expressed to lie paid as evidence of payment or satisfaction of the bond, it is competent for the plaintiff to prove, that notwithstanding the deed purported to be made for a valuable consideration, none was given or contemplated, but that a gift of the property conveyed, was intended.

.Debt, on Bond for ,85000. Pirns — Payment and set pff, accord and satisfaction.

Upon the trial before Norwood Judge, at Nash, Fall Term 1832, the case turned entirely on the pleas of payment and accord and satisfaction, in support of which the defendant gave in evidence three deeds from herself to the plaintiff; one for lands in Tennessee, expressed to be for the consideration of jg2500 — -another for land stating the consideration to be §2250, and Hie third for . other property, in which the. consideration was stated to he #250. The bond bore date 9th March 1821, each of these deeds was dated 2d February 1822. It was contended by the defendant that the property, conveyed by these deeds was in satisfaction of the bond.

The plaintiff proved that lie married the daughter . of the defendant, and offered to shew by a witness present at the execution of the deeds, and by declarations of the defendant, at and after that time, that notwithstanding the considerations expressed, they were really intended as gifts, and were made without any valuable consideration. This evidence was objected to by the defendant and rejected by the Court. A verdict being returned for the defendant, and a new trial being refused, the plaintiff appealed to this Court.

The Attorney General for the plaintiff.

Badger and W. II. Haijwood for the defendant.

GastoN, Judge.

On the trial of the issue upon the pleas of payment, and of accord and satisfaction, the defendant gave testimony tending to shew that three tracts of land had, shortly before the day of payment named in the bond, been conveyed by her and received by the plaintiff in satisfaction of the money thereby stipulated to be paid. Each of the conveyances purported to be made for a valuable consideration, and the amount of all the considerations was the same with the amount of the bond. The plaintiff gave evidence to repel this inference, and offered as further evidence, acts air dcclara-rations of the defendant tending to shew that the conveyances had not been made on account of the bond, but avowedly as an advancement to the plaintiff who was her son-in-law. The testimony thus offered, was rejected.

We think that there was error in rejecting this testimony. The issue between the parties was on a matter beside the deeds, and collateral to them, and involved no question directly or indirectly, either of a claim under the deeds, or of a claim in opposition to them. The controversy w’as not whether the consideration remained unpaid, nor whether there was such a consideration as that recited. The dispute was whether the consid.cration had been paid in the manner which the defendant all0ged, and endeavored to maintain by proof. Tins proof the plaintiff was at liberty to contradict if lie could by evidence of the defendant’s own acts and declarations. If these were inconsistent with the more solemn declarations expressed in the deed, this repugnancy was a circumstance fit to be weighed by the triers, but should not prevent them from being laid before the triers of the matter then in contestation. The testimony was relevant and material, and not forbidden, as we believe, by any principle of law.

The judgment is to be reversed and. a new trial awarded.

Per Curiam. — Judgment reversed.