West v. Dubberly, 4 N.C. 38, 1 Taylor 38 (1816)

July 1816 · Supreme Court of North Carolina
4 N.C. 38, 1 Taylor 38
WEST against DUBBERLY

WEST against DUBBERLY.

Whatever externalibr-rnahty of a its design be creditors, it isvoid; and even without such present design, a deed of gut to a child, unut-tested by a wít'ic-í void against purchaser*,ld

DETINUE for a Slave, named Ben. Plea, “ General issue.” The Plaintiff claimed under an instrument of writing executed to her in 1795, by her father Thomas Cox ; which instrument comprehended four other slaves and half a town iot> It purported to have been made in consideration of love and affection and of five pounds. It was unattested by any witness,

On the same day with %e above deed, Thomas Cox - " also executed a similar one to his son Longjield, for seve-ra^ otber slaves, and the other half of the lot; and the two deeds comprehended all the slaves and real estate w^ich Thomas Cox then owned, and which formed the pj'itttipaí part of his fortune. The children were of the ages of eight and ten years. No delivery was proved.

Thomas, when he made these deeds, owned some horses, household furniture, Skc. and was also indebted to several persons, but not to the amount of the property,thus conveyed.

*39Afterwards, in 1797, Thomas sold the slave Beit to Loften, and executed a bill of sale. The price given was £50, though the slave was worth .£200. The slave was seized in Loften's possession on an execution at the suit of Tignor, sold and purchased by Loften, after he had forbidden the sale, and made known the gift to the Plaintiff, adding, that the purchaser would buy a law-suit. Loften however did not disclose the prior purchase made by himself. '

Thomas Cox became greatly involved after the gifts to his children. All the property comprehended in them Was seized by his various creditors and sold ; and he himself took the benefit of the Act for the Relief of In-’ solvent Debtors. On the death of Loften, the slave in question was allotted to one of his daughters as ptyt of her distributive share, and on her intermarriage with the Defendant, came to his possession.

The Case was submitted without argument.

Seawell, J.

delivered the opiniop of the Court:

If the deed to the daughter was made with a view to defraud creditors, though clothed in the most solbmn form, it would be void when opposed to such claimants ; and if it was made without such motive actually existing, yet if unattested by a subscribing witness, it is declared void by the Act of 1784, which Act our Courts have construed to extend, only to creditors and purchasers.*

Loften, under whom the Defendant claims, purchased first from the father, and afterwards at the sale of a ere-ditor under an execution against the father. If the firs: purchase was bona fde and there is nothing to.impeach it but merely the inadequacy of price, the deed to the .daughter being a gift and unattested by a subscribing. *40Witness, is, as to him, void; and the inadequacy of price a circumstance from which, with others, fraud may be inferred, yet/in itself it is insufficient. But if this purchase was mala fide * and. with iniquitous intent, it would still leave the property, as it fruncí it, liable to the claims of creditors, and the last purchase being made from a public officer, against whose conduct there is no imputation ; the sale being to the highest bidder, where every person had an equal opportunity, though Loften’s conduct at that sale gives no grace to his claim, yet if the father then had a title which was answerable to his creditors, it necessarily passed to Loften by such sale. W e have hot thought it necessary minutely to notice the circumstances under which the deed.was executed to the daughter; but if it was, we should have no hesitation in pAnouncing it fraudulent.

The father, at a time he is much embarrassed, conveys nearly the whole of his estate absolutely to his two infant children, who, from their tender years, are incapable of using it. A conduct so extraordinary and unnecessary in itself, affords the strongest evidence of a fraudulent intention ; and when coupled with a subsequent sale of the same property for a valuable consideration, or opposed to the claim of creditors, conviction follows.

Upon no ground, therefore, can the verdict be supported, but must be set aside and a nonsuit entered.