Barber v. . Buffaloe

Citations

• 29 S.E. 336
• 122 N.C. 128
• 1898 N.C. LEXIS 208

Syllabus

<p>Action of Claim and Delivery — Fraudulent—Conveyance — Coi isidera tion — Fraud—Evidence, Sufficiency of — Exceptions—Practice.</p> <p>1. Exceptions cannot be made for the first time in this Court and, hence, a defendant in an action to set aside a deed of assignment alleged to be fraudulent, cannot for the first time, in this Court, contend that it was incumbent on the plaintiff to show on the trial below that the debts secured in the deed were bona fide.</p> <p>2. Where, in the trial of an action involving the validity of a deed of assignment for creditors alleged to be fraudulent, the trustee shows the existence of the evidences of some 'of the debts named in the deed, he thereby proves a consideration sufficient to support his title to the assigned estate. It is not necessary that he should prove the existence of all the debts named in the deed, nor of any particular debt.</p> <p>3. Where, in an action involving the validity of a deed of assignment for creditors alleged to be fraudulent, a debt was attacked which, if allowed, would absorb the entire estate, the note of the assignor to the creditor to the amount of the debt, together with the testimony of the assignor that he had given the note for borrowed money, was sufficient proof of the existence of the debt.</p> <p>4. To render a deed of assignment for creditors void, it is not necessary that the trustee shall partioiimte in or have knowledge of the fraudulent intent of the assignor, the fraudulent intent of the latter, only, being sufficient to invalidate it.</p> <p>5. Where, in the trial of an action involving the validity of a deed of assignment for creditors, it appeared that the deed was written by an attorney at midnight shortly after the plaintiff had obtained a judgment against the assignor; that the deed provided that the balance of a debt secured by a mortgage on the debtor’s home should be first paid; that a relation, who was surety in such preferred debt, accompanied the attorney to the assig