Opinion
(June Term, 1852.)
When A. made a fraudulent deed of trust of certain property to B., and for a fair price and bona fide conveyed the property to B.: Held, that B. acquired a good title, notwithstanding the previous fraudulent transaction.
(266) APPEAL from Caldwell, J., at Spring Term, 1852, of RANDOLPH. Trover for a wagon. The plaintiff claimed title to it under a purchase of it and a horse, made by him in May, 1847, from one Thomas White and one Wall, at the price of $135, which was their value. In September, 1847, the defendant obtained a judgment against Wall before a justice of the peace on a debt, which existed prior to March, 1847, and then had the wagon sold on execution, and became the purchaser. The defense was that the plaintiff's purchase was fraudulent and void as against Wall's creditors. In order to sustain it, the defendant gave in evidence a deed of trust made by Wall to Thomas White, in March, 1847, whereby he conveyed the wagon, two horses, and some other small articles, being all the property he had, in trust to secure certain debts which Wall owed the plaintiff, Noah White, or for which the plaintiff was his surety, amounting altogether, as recited in the deed, to "about $300," with a provision for the sale of the property by the trustee if the debts were not paid in six months. The said Wall was also examined as a witness, and he stated that the amount of the debts secured in the deed was not known correctly when the deed was executed, and that it was supposed $300 would cover them, and that sum was inserted for that purpose; but that, when they were afterwards settled, it was found that they amounted to $177. Thereupon counsel for defendant moved the court to instruct the jury that the deed of trust was fraudulent and void as against defendant, and, if so, that such fraud vitiated the sale from Thomas White, the trustee, and Wall to the plaintiff, in May, 1847, whether such sale were fair or fraudulent. But the court refused to give that instruction, and told the jury that though the deed of trust were fraudulent, yet if the subsequent sale to the plaintiff were in good faith and for a fair price, the plaintiff was entitled to recover. A verdict and judgment were given for the plaintiff, and the defendant appealed.
Gilmer and Miller for plaintiff. (267)
Mendenhall and Bryan for defendant.
There cannot be a doubt of the law laid down to the jury. Assuming the deed of trust to have been fraudulent, yet, clearly, the fraudulent grantor and grantee, united, must be able to make a good title; for the title must be in one of them, and unless it could be conveyed, we should have an instance of property perpetually inalienable. A stranger might, therefore, have purchased this property. So might the plaintiff, for a fair price and bona fide, which is admitted to be the case here; for the law does not deprive persons of the power of reference, but rather encourages them to abandon covinous conveyances and make honest bargains instead of them. That was done here before the defendant got a judgment against Wall.
PER CURIAM. No error.
Cited: Pollock v. Wilcox, 68 N.C. 48.