Griffin v. Tripp, 53 N.C. 64, 8 Jones 64 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 64, 8 Jones 64

GRIFFIN AND ACHEN v. W. R. TRIPP.

A naked declaration of a debtor in embarrassed circumstances, that an assignment of a note, theretofore made by him was bona fide and for valuable consideration, is no evidence, as against creditors, that such was the fact, and such assignment was Held to be void.

This was an issue growing out of an attachment sued out against W. R. Tripp, tried before Heatii, J., at a Special Term (January, I860,) of Beaufort Superior Court.

Henry A. Ellison was summoned as garnishee, who answered that he had given a note to W. R. Tripp, dated 19th of November, due 1st January, 1858, for the sum of $936,67 ; that lie had been informed by letter from T. K. Archibald that lie had bought this note ; that if the note is the property of the defendant, he owes him that sum of money, but if the note is not his property, he owes him nothing, and issues were made as follows : Whether the said Ellison, at the time of the service of the attachment was, and still is, indebted to the said W. R. Tripp, by bond, for $936,37, bearing date, &c.” On the trial it was proved on the part of the plaintiffs, by John A. Stanly, Esq., that some time in October, 1857, before the institution of this suit, William R. Tripp handed him a note, made by IT. A. Ellison, payable to said Tripp, to-be collected by him as attorney at law; that said- note, at the time, bore the endorsement in blank of said Tripp ; that at the time of handing him this note, Tripp said it was the property of Thomas K. Archibald, of Tennessee; that be (Tripp) had sold it to Archibald some months before ; that Archibald requested him to bring the note here for collection, and that at Tripp’s request he gave a receipt for the note as having either been received from Archibald, or from Tripp as the agent of Archibald ; and that he- had the note in his possession at the time of this trial. The execution of the note was admitted. The plaintiff' then, to prove Tripp’s insolvency, produced divers judgments of record against him, which were still-unsatisfied. He proved that Tripp had resided in Beaufort county, until- . about 1855, when he left the county, and was, absent when the attachment in the case issued; that Archibald-.was'his ' brother-in-law, having married his (Tripp’s) sister. It was proved also that Archibald was a man of property. • i

The Judge charged the jury that there was no. evidence that the note had ever been delivered to Archibald, and that the endorsement did not convey to him a vested title to the note; and that if they believed the evidence, they should find for the plaintiff. Defendant’s counsel excepted.

Verdict for the plaintiff, judgment of condemnation against Ellison, from which he appealed to this Court.

Rodman and Shaw, for the plaintiffs.

Warren, for the defendant.

Pearson, C. J.

A debtor in embarrassed circumstances cannot divest himself, as against his creditors, of the title to any portion of his estate by a voluntary conveyance. To make the transfer valid against creditors, it must be Iona fide and for a valuable consideration.

If a debtor executes a bill of sale for a slave and admits therein the receipt of the purchase-money, such admission is not evidence against a creditor of the payment of the consideration ; Claywell v. McGimpsey, 4 Dev. Rep. 89.

This principle is settled. In our case, the assignment of the note does not purport to be for value, and there is not even an admission by the debtor at the time of the supposed transfer, that the price was paid. The only attempt to prove a valuable consideration was by showing the naked declaration of the debtor at the time he handed the note to Mr. Stanly, when he said “ the note was the property of Archibald, and that he had sold it to Mm some months before.” If the admission of a debtor at the time he executes a conveyance, and. as a part of it, that he had received a valuable consideration, is not evidence of that fact, as against a creditor, of course, a naked declaration made by him some months after-wards, is no evidence of the fact.

It follows that the alledged assignment of the note was void as to creditors. There is no error.

Per Curiam,

Judgment affirmed.