Marsh v. Hampton, 50 N.C. 382, 5 Jones 382 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 382, 5 Jones 382

ALBRED H. MARSH v. E. D. HAMPTON, et. al.

Where a party, who was alleged to have made a fraudulent conveyance, remained in possession of the property after the conveyance, what he said about the nature of his possession, was Held to be competent in impeachment of the conveyance.

ActioN of TROVER, tried before Saunders, J., at the last Spring Term of Davidson Superior Court.

This was an action of trover to recover the value of a negro, alleged to have been converted by the defendants. The plaintiff claimed the property, in question, as a trustee, for the benefit of Mrs. Moore, and her family, under a deed made by James Elliott, her father, for that purpose. The slave, in question, had originally belonged to Isaac A. Moore, who had conveyed him in trust to secure a debt to Dr. Beall, His father-in-law, Elliott, lifted this lien, and took a conveyance for the property to himself, and then conveyed as aforesaid., for the benefit of his daughter, Mrs. Moore. The defendants claimed under an execution against Moore, under which the slave was sold.

The defendants impugned the conveyance to Elliott, and from him to the trustee, as being fraudulent. It was in evidence, that after the conveyance in trust, the slave remained in the possession of Moore as before, and it was proposed by the defendant to give in evidence the declarations of Moore, to the effect, that the property was his, and that he held it adversely to the claim now set up by the plaintiff. The Court rejected the evidence. Defendant excepted.

Verdict for the plaintiff. Judgment. Appeal by defendant.

J~. II. ¿Bryan, for the plaintiff.

Kittrell, for the defendants.

Battle, J.

"We are unable to perceive any sufficient reason why the testimony, offered and rejected in the present case, was not as competent as that which was decided to be admissible in the cases of Askew v. Reynolds, 1 Dev. and Bat. Rep. 307, and Foster v. Woodfin, 11 Ired. Rep. 339. The case states that after the purchase of the slave by Elliott, he permitted him to remain with Moore, the former owner, who was his son-in-law, and that after the conveyance by Elliott to the plaintiff as trustee for Moore’s wife, the slave remained still in the pos-sesrion of Moore and wife, except when he was occasionally at Elliott’s. It is certain, then that, the slave was never out of the possession of his former owner, and it was while he was thus in the possession of Moore, that the declarations by which he claimed the slave as his own, were made. The principle of the decision, in the cases to which we have referred, is that the declarations of a party in possession are admissible, to prove the character of the possession, as, whether he holds it for himself or for another, and in that view it is competent, after a conveyance by the former owner, if lie be permitted still to retain the possession. Here, we presume, the testimony was rejected because the possession might be supposed to be that of the wife, for whose separate use the slave had been conveyed to the plaintiff, as a trustee. But the difficulty is that it does not appear that Moore’s possession had ever been changed, and the contrary is to be inferred from the expression in the case that it remained after the conveyance, as before. Our opinion is, that the testimony ought to have been received by. the Court, and submitted to the jury. The jury were not bound to believe it, or to infer from it that the title to the slave had not passed by the conveyance to the plaintiff; but upon the question of imputed fraud, they had a right to hear and consider it, and to give it whatever effect they might think it fairly entitled to.

The judgment must be reversed, and a venire de novo granted.

Pee CueiaM. Judgment reversed.