Opinion
February Term, 1891.
Witness — Parties to Actions — Comments of Counsel — Registration — Evidence — Fraud.
1. The fact that a party to an action, who is present at the trial, does not become a witness in explanation of suspicious circumstances affecting the integrity of his conduct, and about which he has peculiar means of information, is a legitimate subject for comment by counsel, notwithstanding the deposition of such party, made on the application of his adversary, has been introduced by himself. (MERRIMON, C. J., dissenting.)
2. As between the parties, there being no question of title arising from prior registration of junior deeds, a deed registered after the commencement of an action is admissible in evidence.
3. Although the vendor at the time of the alleged fraudulent conveyance retained property sufficient to pay his indebtedness, and although the vendee paid the purchase-money, yet if the conveyance was made with the intent to defraud creditors, and this was known to and participated in by the vendee, the deed is void as to the creditors.
ACTION tried at February Term, 1891, of SAMPSON, Graves, J., presiding.
(12) C. B. Aycock and G. V. Strong for plaintiff.
George Rountree and H. L. Stevens for defendant.
The action is to recover land. The title was in issue. On the trial the plaintiff put in evidence a deed to him from the sheriff of Wayne, dated 10 March, 1890. The land embraced by this deed is the same as that the subject of this action, and was sold to satisfy certain judgments for money against E. B. Jordan. Those judgments, the executions issued upon the same, and the returns by the sheriff thereof were also put in evidence. "In order to estop defendant, plaintiff introduced in evidence a certified copy of a deed from E. B. Jordan (above named) and wife to D. B. Jordan, the defendant, dated 9 February, 1889, and duly proved and recorded in the office of Register of Deeds of Wayne, which was admitted to cover the land in controversy, which deed recites a consideration of $1,500." The plaintiff alleged that this deed was fraudulent, (11) made by the defendant in the judgments above mentioned to the present defendant, his son, to defraud the creditors of the former, and he produced evidence tending to prove such fraudulent purpose, and that the defendant paid nothing for the land, etc.
Defendant then introduced his examination, had before the Clerk of the Superior Court of Wayne, at the instance of the plaintiff, under sections 581 and 582 of The Code.
Defendant introduced in his behalf his mother, who testified, among other things, that the money for the land was paid by D. B. Jordan to E. B. Jordan in her presence, no one except herself, her husband and son being present; that it was paid in a bundle and was not counted, and she could not say how much there was, but she heard him say there was $1,100 or $1,200; that she took the money and put it in her handsatchel and carried it home, and that night gave it to her husband, and has not seen it since.
In reply, plaintiff introduced evidence tending to prove that the defendant had been in Pender County only one year before the deed was executed by him, and that he was insolvent when he went to Pender.
E. B. Jordan was present in court during the whole of the trial, as was also the defendant, and neither of them was introduced as a witness. During the progress of the argument one of plaintiff's counsel was proceeding to comment on the failure of E. B. Jordan and D. B. Jordan to take the stand as witnesses, when the defendant objected that it was improper to comment on his failure to take the stand. His Honor overruled the objection, and defendant excepted.
There was a verdict and judgment for the plaintiff, and the defendant appealed.
The first three exceptions were without merit, and were abandoned on the argument.
The fourth exception was: "The defendant was present in court during the whole of the trial. The plaintiff's counsel was proceeding to comment on the failure of the defendant to take the stand as a witness, when defendant objected that it was improper to comment on his failure to take the stand. The court overruled the objection, and defendant excepted." There is no exception to the nature of the comments of counsel as being an abuse of the privilege of counsel, and an exception of that kind must be made at the time, or it is waived. S. v. Suggs, 89 N.C. 527; S. v. Lewis, 93 N.C. 581; S. v. Powell, 106 N.C. 635.
The point presented is the right to comment on the fact that the opposite party in a civil action does not go upon the stand as a witness in his own behalf. The Code, sec. 1353, prohibits such comment as to the defendant in a criminal action, but there is no such inhibition in regard to parties in civil actions. Whatever may have been the intimations of the Court in the earlier cases, when the statute allowing parties to civil actions to testify (The Code, sec. 1350) was fresh and considered almost revolutionary, there was never any statute prohibiting such comments in civil cases; and it has been settled in Goodman v. Sapp, 102 N.C. 477, that the introduction or nonintroduction of a party as a witness in his own behalf is the subject of comment exactly as the introduction or nonintroduction of any other witness would be. There was evidence tending to show, and which the jury found did show, fraud on the part of the defendant. He was in court and heard it. The truth of the facts was peculiarly within his knowledge, and he was a competent witness. That he failed to go upon the stand and contradict evidence affecting him so nearly was a pregnant circumstance which the jury (13) might well consider, and which counsel, within proper limits, might call to their attention.
It is contended, however, that while this is generally true, this case is an exception, because the plaintiff had caused the examination of the defendant to be taken prior to the trial, as authorized by The Code, secs. 581, 582. That proceeding is a substitute for the bill of discovery under the former practice (section 579), and the plaintiff could have rebutted his deposition on the trial by adverse testimony (section 583). Besides, the deposition was put in evidence by the defendant himself, and the plaintiff "did not make one his witness by taking his deposition which he declined to read." Pearson, J., in Neil v. Childs, 32 N.C. 195.
Every one knows that, as a matter of practice, the evidence of a witness viva voce is usually more effective with a jury than the reading of a deposition; and, again, one of the recognized aids to a jury in arriving at the truth of controverted facts is the bearing of a witness on the stand, his manner in giving in his testimony, his frankness or efforts at concealment, and the like. That the defendant, who was in court when his character for truth and honesty was so strongly impeached, should prefer to put in his deposition and deprive himself of the benefit of his viva voce testimony, and the jury of the advantage of seeing his bearing and manner on the stand, was surely a subject of legitimate comment. It was open to his counsel to argue that it proceeded from delicacy and a sense of propriety, but that it did not deprive the plaintiff's counsel from calling attention, in a proper way, to the fact that the defendant preferred giving the jury his deposition instead of the benefit of a personal examination before them. There was no exception that the comments of plaintiff's counsel were of a nature to be an abuse of the privilege. Besides, there was brought out on the trial for the first time the material testimony that the money was handed over in a package uncounted; (14) the plaintiff's mother, who was relied on as a witness to prove the payment of money, not knowing, therefore, how much it was; and, further, that the defendant went to Pender only one year before the deed was executed to him, and that he was insolvent when he went there. That the defendant did not explain these circumstances, which did not appear in the deposition, of itself made it legitimate to comment upon his failure to go upon the stand. It is not always proper to comment upon the fact that any one does not go upon the stand. When, however, the witness is in court and can give important information to the court and jury in their search after the truth, the fact that he is not called by the party who should put him on the stand is a subject of proper criticism, and it makes no difference (in a civil case) that such witness is a party to the suit.
The fifth exception is that plaintiff's deed, though executed before action brought, was not registered till the same day the summons was issued. The plaintiff had the equitable title without registration, and could introduce the deed as evidence if registered the very day of the trial. There is no question here of the prior registration of a junior deed which would defeat plaintiff's claim. Laws 1885, ch. 147.
The sixth exception is that the court charged the jury: "If they should find that E. B. Jordan (the father of the defendant and the grantor in the deed) reserved sufficient, ample and available property to pay all his debts existing at the time of the execution of the deed to the defendant, and if they should also find that the purchase-money was paid by the defendant, yet if they should find that E. B. Jordan made said deed with intent to defraud his creditors, and that intent was known to and participated in by the defendant, the deed would be void." This charge is supported by Savage v. Knight, 92 N.C. 493; Woodruff v. Bowles, 104 N.C. 197.