Hodges v. Blount, 2 N.C. 478, 1 Hayw. 478 (1796)

Oct. 1796 · North Carolina Superior Court

2 N.C. 478, 1 Hayw. 478

Hodges v. Blount.

Property sold remaining in the possession of the vendor where there is an absolute bill of sale, is evidence of fraud: so is the not registering the bill of sale till long after it is made, coupled with an offer on the part of the' vendor to antedate.

The 16th May, 1789, Lassiter sold to the, Plaintiff the negro in question. Lassiter derived his title under Lucas, who made a bill of safe to Rayford on the 10th of August, 1788. The Defendant, Blount, who in fact acted for. Worseley, who was the real Defendant,produced a bill of sale from the same Lucas to Worseley, dated the 5th of March, 1788. It was proved Rayford gave a valuable consideration. No consideration on the part of Worseley was proven, and the negro was in possession of Lucas on the 5th of March, 1788 : Lucas having been sued and given bail, they were about to surrender him, and that he offered to give them a hill of sale for the negro, and to antedate it so as to give it a preference to Rayford’s,

Per curiam

It is alleged that the bill of sale to Worseley is fraudulent, and if it is, the law says it is void. It is not sufficient however to allege fraud — it must be proven either positively and directly, or by circumstances, which is the most usual way, there seldom being any direct proof of fraud to be had. There is no positive proof of fraud on the part of Worseley, but circumstances tend that way : he did not take the negro into possession, lie remained with Lucas, though the sale purports to be an absolute one. No other evidence offers any substantial reason in explanation of this circumstanre. Lucas also kept possession after the bill of sale to Rayford, hot the cause of this is explained. It is not proved that Worsdey gave any valuable- consideration, though it is pro\ed on the part of Rayford. Worseley’s deed though purporting to he dated so long before Rayford’s, is not admitted to registration till after ; which circumstance added to the proof of Lucas’s offering to antedate, if his bail would not surrender him, weighs something. Th<> jury found for the Plaintiff, and there was a motion for a new trial $ but the court being satisfied with the verdict, refused it.

Note. — Where the possession does not accompany and follow the title, the transaction is fraudulent in law. Gaither v. Mumford, N. C. Term Rep. 167. But several cases, both before and after 'hat case hold that such possession is only evidence of fraud ; see Cox v. Jackson, post 423. Ingles v. Donaldson, 2 Hay. 57. Vick v. Keys, Ibid. 126. Falkner v Perkins, Ibid 224. Bell v. Blaney, 2 Murph. 171. Trotter v. Howard, 1 Hawks 320. Smith & Stanly v. Niel & others, Ibid. 341.— Howell v. Elliott, 1 Dev. Rep. 76.