after stating the case. It was not error to refuse the motion of the plaintiff to strike out the clause of the answer wherein the defendant setup his justification on the ground that the same was sham. Without doubt an answer may be stricken out as sham under C. C. P., § 104, and and so it might have been under the common law pleadings; but then under either system itinust be really a sham pleading, that is to say, it must set up matter as a defence which is a mere pretence and has not the color of fact. The design- was to prevent vexatious defences by the plea of matter for delay, false in fact, and so known to be to the *474pleader. And while in general such a pleading may be stricken out where the falsehood can be clearly shown, we think the power ought not to be exercised in any case where the matter objected to, as presented or in any other form, might constitute a defence. Stephen on Pleading, Rule 9, p. 441; Bliss on Code Pleading, § 422 and note.
Under this view of a sham pleading, the clause of the defendant’s answer could not be considered to be of that kind. The defendant therein alleged the executions delivered to him and the claims of the creditors that the deed conveying the goods was executed with intent to hinder and defeat them, and as such was fraudulent and void; and the answer then goes on to aver, that, so believing the deed to be, he levied on and sold the goods. We think the reference to and adoption of the allegations of the creditors as to the malajides of the deed, and the averred action of the defendant, on a belief in the truth of those allegations, was in substance an allegation of the invalidity of the deed by the defendant himself, and was such an averment as that an issue might be made thereon as to the alleged fraud. We hold therefore that the clause objected to was sufficient for the formation of issue as to the alleged fraud, and the matter having the color of fact, the judge was right in refusing to strike it out.
Upon the other point of error assigned by plaintiff, on the refusal of the court to grant judgment for him on the response of the jury to the issue submitted to them, and in the grant of judgment in favor of defendant, non obstante veredicto, we are of opinion that His Honor did' not err in refusing plaintiff judgment but did, in the grant of judgment to defendant.
Fraud with respect to the deed in trust in question might be of three kinds: fraud per se on the facts appearing on the face of the deed, not explainable by evidence dehors and not requiring the verdict of a jury, but to be declared *475by the court; fraud by presumption of the law rebuttable, to be found a fraud by the jury under the direction of the court, unless there were other facts shown forth in evidence or admitted sufficient in law to rebut the presumption, and then, if there was not fraud of either of these kinds, there might have been fraud in fact, as an open question to the jury under instruction from the court as to what in law would constitute fraud, to be found from the circumstances and the evidence of the motives and intent of the parties. Hardy v. Simpson, 13 Ired., 132; London v. Parsley, 7 Jones, 313; Cheatham v. Hawkins, 76 N. C., 335, and same case 80 N. C., 161.
In fraud of the first kind there is nothing to be found by a jury, but in the others there is the fact of fraud to be found according to the artificial weight of the legal presumption, or against it upon the evidence submitted in rebuttal, or to be found as an open question of fact.
The issue submitted to the jury in this case had reference only to the intent in the mind of Bell, attendant on or moving him to the execution of the deed; and upon the supposition that the fraud under investigation was a fraud by presumption, it was entirely immaterial, and the response thereto was of no weight to rebut the presumption.
In Cheatham v. Hawkins, 80 N. C., 161, the immateriality of the intent in such case was described in the following language by the Chief Justice: “Acts fraudulent in view of the law because of their necessary tendency to delay or obstruct the creditor in the pursuit of his legal remedy, do not cease to be such because the fraud as án independent fact was not then in the mind. If a person does and intends to do that which from its consequences the law pronounces fraudulent, he is held to intend the fraud inseparable from the act.” It is evident that the absence of the fraudulent intent in Bell as found b}' the jury had no efficacy to repel the fraud in legal intendment, and therefore the finding *476was wholly immaterial and the refusal of judgment thereon in favor of the plaintiff was not erroneous.
But it remains to consider whether the fraud in the case was one by intendment of the law, and if so, whether it should not have been so found by the jury according to the intrinsic artificial weight of the presumption to be laid down by the court, or upon evidence submitted to them as reasonably sufficient to rebut the fraud.
Under the authority of the case of Cheatham v. Hawkins supra, the facts of this case being very similar to that, we agree that the deed of Bell to his trustee was not fraudulent and void on its face, but was presumptively so and the presumption was required to be rebutted.
The fraud imputed to the deed whether by presumption or ns an open question of fact was drawn into issue upon the pleadings between the parties, and should have been passed upon by the jury under proper directions from the court as before explained, or by-the court with a waiver of jury by the parties, of which there is no suggestion in the record; and this being so, there was no fact found or admitted in the record to warrant a judgment for the defendant.
A judgment non obstante veredicto is of very restricted application, being proper only, according to the law writers, when a plea is put in confessing the cause of action, and issue is joined or found on an immaterial matter in avoidance,in which case the party against whom the issue is found may have judgment on the confession non obstante veredicto ; but that doctrine can have'no application for the defendant, if it could in any case, as the fraud by him alleged has never been confessed by the plaintiff.
In our opinion upon the demurrer to evidence by the'defendant, His Honor giving the plaintiff the full benefit of any fact on the face of the deed or otherwise proved or reasonably to be inferred therefrom, should have told the jury, if such was his opinion, that there was no evidence *477that would justify a finding a rebuttal of the presumption, and should have had the jury to find the fraud.
From the omission of the court to have-the fraud in this case found by the jury, there was no foundation or warrant for the judgment for defendant, and the same must be reversed and a venire de novo awarded.
Error. Venire de novo.