Moffitt v. Burgess, 53 N.C. 342, 8 Jones 342 (1861)

June 1861 · Supreme Court of North Carolina · One witness testified, that when defendant returned, he stated that Aired had gone to High Point or Greensborough to get work. Another, that he said on his return, that Aired was in a quandary, when he left him, whether to go to Beaufort or Missouri

53 N.C. 342, 8 Jones 342

HUGH T. MOFFITT v. JOHN O. BURGESS.

Where a party, with his horse and buggy, carried a debtor to a railroad station, and there procured the money to enable him to leave the State, with the intent to assist him in the purpose of avoiding his creditors, it was held to be a fraudulent removal within the statute.

The declaration of a debtor fradulently removed, that “ he intended to get the defendant into a scrape,” was held to be immaterial.

This was an aotioN ON the oase, for fraudulently removing a debtor, one Aired, tried before Howaed, J., at the last Superior Court of Randolph county.

Mi's. Kersey, a cousin of the defendant, and of Aired, testified that the defendant, and Aired, his brother-in-law, came one Sunday evening to the residence of her husband, in Greensborough, in the buggy and with the horse of the defendant; that the defendant asked for her husband, and said that he had bought Alred’s growing crop, and wished to get the money to pay him for it; that Aired was broke — was out collecting money, and was going to Missouri ,• that the night before, Aired came to his house and told him that his crop was under execution, and wanted him to buy it; that he was going away; that Aired could not go, unless the defendant could get the money from witness’ husband ; that witness asked defendant, “ what was to become of Sally,” Alred’s wife, to which he replied, that she did not know her husband was going away until the night before ; that she was not going until further orders, and that in the mean time, he (defendant) was to take care of her; that he didn’t reckon that witness would ever see Aired again ; that on Monday, her husband let defendant have the money, $150, which he paid over to Aired, who took the next train for the west.

One witness testified, that when defendant returned, he stated that Aired had gone to High Point or Greensborough to get work. Another, that he said on his return, that Aired was in a quandary, when he left him, whether to go to Beaufort or Missouri.

Kersey stated that he lent the defendant the sum of $150, which was paid to Aired; that defendant then endeavored to pnrsuade Aired to give up his purpose of going and offered to furnish him a house, free of rent, if he would give up the idea of going.

In the course of the trial, the defendant’s counsel asked a witness if he did not hear Aired say, sometime before he went away, that he intended to get the defendant into a scrape. Plaintiff’s counsel objected to this question, and the testimony was ruled out, whereupon the defendant excepted.

The Court charged the jury that, although a debtor may be embarrassed, and may be preparing to leave the country, to avoid his creditors, yet, if a person simply purchase his property for value, or to save his debt, and with no other purpose or intent, he would not be made liable for the debts of such debtor; but if he knows that the debtor is insolvent or embarrassed, and is preparing to avoid his creditors, and he furnish him means of transporting either himself or his property, then the law presumes he intended the consequences of his act, and unless he shows that such was not his intent, he will be held responsible. Therefore, if the jury were satisfied that the defendant knew of Alred’s embarrassment before he left home, and that Mrs. Kersey’s statement was true, plaintiff was entitled to recover. But if the defendant simply purchased the crop and went to Creensborough for the money, and with no other intent, then they should find for the defendant. Defendant’s counsel excepted to the charge.

Verdict and judgment for plaintiff. Appeal by defendant.

Long, Scott and Phillips, for the plaintiff.

Gorrell, for the defendant.

Battle, J.

Taking the whole of Ilis Honor’s charge together, and applying it to the facts stated by the witnesses, Mr. and Mrs. Kersey, it is correct in principle, and is fully sustained by the case of Moss, Bell & Co. v. Peoples, 6 Jones 140. If the defendant, with his horse and buggy, carried the debtor to Greensborough, and there procured the money to enable him to leave the State, and if this were done with the intent to assist him in the purpose of avoiding his creditors, it was a fraudulent removal of the debtor within the meaning of the statute, and the defendant must abide the consequences.

The testimony which was offered on the part of the defendant as to the declaration of the debtor, that “ he intended to get him into a scrape,” was properly rejected on the ground of its immateriality. The debtor did get him into a scrape, and it was a matter of no consequence on the trial of the issue whether he did it designedly or not.

Per Curiam,

Judgment affirmed.