Opinion
(December Term, 1860.)
Where one owned and possessed slaves for fifteen ears, and they were run out of the State Secretly by the owner, into another State, and then taken in hand by the defendant, who carried them into a distant State, sold them, and received the money about the time the plaintiff's judgment was obtained against the owner, it was Held, that this was some evidence of a secret trust, for the use and benefit of the debtor, to enable him to defraud his creditors.
SCIRE FACIAS, alleging a secret trust, etc., tried before French, (46) J., at last Fall Term of MOORE.
Person and Strange for plaintiff.
Neill McKay and McDonald for defendant.
Several issues were made up and submitted to the jury, to wit:
1. Whether Neill McNeill held any property, etc., by secret conveyance from Dugald McDugald, and in trust for him, prior to the filing of his (defendant's) answer in this cause.
2. Whether he held any slaves or any property, etc., by secret delivery to him by said McDugald, in order to enable him to avoid the payment of his debts.
The plaintiff showed in evidence a judgment and execution in his favor against Dugald McDugald, at October Term, 1854, and a return of nulla bona, to April Term, 1855, and this sci. fa., issued 12 May, 1855, returnable to the July Term, of Moore County court.
The plaintiff further showed in evidence that a negro woman named Nancy was in possession of McDugald for ten or fifteen years; that she came to him by marriage with his sister of the defendant, and that since the marriage the woman had had three children; that McDugald had possession of Nancy and her children in the latter part of the fall, 1854; that he was largely indebted, and that he had been sold out in 1842; that one John McNeill, the nephew of the defendant, by the direction of McDugald, and with the knowledge of the defendant, met with these slaves on the road, about 9 o'clock at night about half a mile from the defendant's residence, and carried them to the house of one Pegues (defendant's father-in-law), in the State of South Carolina, where they were delivered to Pegues; that in the following winter or spring, Neill McNeill left home to go to the residence of Pegues, and then took the slaves from the house of Pegues and sold them in the State of Mississippi.
The court charged the jury, that there was no evidence to sustain either of the issues, and they should find for the defendant. Plaintiff's counsel excepted.
Verdict and judgment for the defendant, and appeal by the (47) plaintiff.
This Court is of opinion that there was error in the court below, in holding there was no evidence to support the affirmative of either of the issues.
It may be assumed as a fact, in deciding the matter now before us, that in the latter part of the fall of 1854, Dugald McDugald was the owner of certain slaves, Nancy and her children. Having acquired them by his marriage, he had been in continued possession of them for 14 or 15 years, up to that time. The plaintiff's judgment was obtained against him at October Term, 1854, and in that fall he employs John McNeill, a nephew of his wife and a nephew of defendant McNeill, to conduct these slaves to the house of one Pegues, who was a brother-in-law, residing in the State of South Carolina.
The slaves are taken charge of by John McNeill at 9 o'clock at night, about half a mile from Neill McNeill's house, with the knowledge of McNeill, but under instructions from McDugald.
It is further in evidence that Neill McNeill afterwards took the negroes from the house of Pegues, carried them to Mississippi, and sold them. At what time the latter occurrence took place does not certainly appear, but it is in evidence that Neill McNeill went to the house of Pegues in the winter of 1854-'55 or spring of 1855, and there is no evidence of any other visit.
Taking the evidence thus detailed all together it seems to us to afford, to say the least of it, some evidence that the slaves in question were taken off by Neill McNeill, the defendant, to the State of Mississippi and sold before the Fall Term, 1855, of the county court, when his answer was put in; and, consequently, between the time of the judgment against McDugald and the answer to the Scire facias, he, McNeill, had the proceeds of the sale of the slaves in his hands, and in (48) contemplation of law, these proceeds were the property of McDugald, the debtor.
It is not proper for us to say how much this evidence weighs in establishing the affirmative of the issues, or either of them; but we think it is of some weight and ought to have been submitted to the jury.
We decline discussing the case in any other aspect or upon any other point of the evidence. The facts now in proof are different from those presented by the pleadings and which were assumed to be true on a former discussion of it in this Court, Morrison v. McNeill, 51 N.C. 450, and we content ourselves with simply declaring that, according to the proofs reported, it was erroneous to hold there was no evidence in support of the affirmative of either of these issues. There should be a reversal of the judgment of nonsuit, and a
PER CURIAM. Venire de novo.