Doe on the Demise of Gilmer v. Earnhardt, 46 N.C. 559, 1 Jones 559 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 559, 1 Jones 559

DOE ON THE DEMISE OF JAMES F. GILMER v. SOLOMON EARNHARDT.

A provision in a deed in trust, for the postponement of the sale of the property, for nine months, and then to be sold on a credit of six months, is not a fraud in law, so as to require of the CoUrt to declare it void from its face.

ActioN of Ejectment, tried before bis Honor, Judge Settle, at the Spring Term, 1854, of Cabarrus Superior Court.

Tpe question upon which the opinion of the Court proceeds, 'arises, upon a deed of trust, tinder 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 Novemb er next, on a credit of six months¡ The counsel for the plaintiff asked ms Honor to instruct tne 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 ma- ■ ker 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.

Wilson, Oraige, and Bynum, for plaintiff.

Osborne, Boyden, and R. Barringer for defendant.

Battle, J.

In declining to give the instruction which was prayed by tbe plaintiff’s counsel, bis Honor was fully supported by tbe 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. Tbe deed in trust contains no stipulation that tbe debtor should retain possession of and use the property conveyed until tbe sale; and it might well be, that tbe postponement of the sale, for nine inonths after tbe deed was executed, and tbe provision for selling upon six month’s credit, instead of for cash, was intended to operate, and did operate for .the benefit of all tbe creditors. Still, if tbe deed was made with the intention to binder, delay or defraud tbe creditors, of the bargainor or any of them, it was void; and upon that question, the plaintiff has no just cause to complain of tbe instructions which bis Honor gave to tbe 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.