Opinion
(December Term, 1860.)
A naked declaration of a debtor in embarrassed circumstances that an assignment of a note, therefore made by him, was bona fide and for valuable consideration, is no evidence, as against creditors, that such was the fact, and such assignment was held to be void.
THIS was an issue growing out of an attachment sued out against W. R. Tripp, tried before Heath, J., at January Special Term, 1860, of BEAUFORT.
Rodman and Shaw for plaintiffs.
Warren for defendant.
Henry A. Ellison was summoned as garnishee, who answered that he had given a note to W. R. Tripp, dated 19 November, due 1 January, 1858, for the sum of $936.67; that he had been informed by letter from T. K. Archibald that he had bought this note; that if the note is the property of the defendant, he owes him that sum of money, but if the note is not his property, he owes him nothing; and issues were made as follows: Whether the said Ellison, at the time of the service of the attachment, was and is still is indebted to the said W. R. Tripp by bond for $936.37, bearing date, etc. On the trial it was proved on the part of the plaintiffs, by John A. Stanly, Esq., that some time in October, 1857, before the institution of this suit, William R. Tripp handed him a note, made by H. A. Ellison, payable to said Tripp, to be (65) collected by him as an attorney at law; that said note, at the time, bore the endorsement in blank of said Tripp; that at the time of handing him this note Tripp said it was the property of Thomas K. Archibald, of Tennessee; that he (Tripp) had sold it to Archibald some months before; that Archibald requested him to bring the note here for collection; that at Tripp's request he gave a receipt for the note as having either been received from Archibald, or from Tripp as the agent of Archibald, and that he had the note in his possession at the time of this trial. The execution of the note was admitted. The plaintiff then, to prove Tripp's insolvency, produced divers judgments of the record against him, which were still unsatisfied. He proved that Tripp had resided in Beaufort County until about 1855, when he left the county and was absent when the attachment in the case issued; that Archibald was his brother-in-law, having married his (Tripp's) sister. It was proved, also, that Archibald was a man of property.
The judge charged the jury that there was no evidence that the note had ever been delivered to Archibald, and that the endorsement did not convey to him a vested title to the note, and that if they believed the evidence they should find for the plaintiff. Defendant's counsel excepted.
Verdict for the plaintiff, judgment of condemnation against Ellison, from which he appealed to this Court.
A debtor in embarrassed circumstances cannot divest himself, as against his creditors, of the title to any portion of his estate by a voluntary conveyance. To make the transfer valid against creditors it must be bona fide and for a valuable consideration.
If a debtor executes a bill of sale for a slave and admits therein the receipt of the purchase money, such admissions is not evidence against a creditor of the payment of the consideration. Claywell v. (66) McGimpsey, 15 N.C. 89.
This principle is settled. In our case, the assignment of the note does not purport to be for value, and there is not even in admission by the debtor at the time of the supposed transfer that the price was paid. The only attempt to prove a valuable consideration was by showing the naked declaration of the debtor at the time he handed the note to Mr. Stanly, when he said the note was the property of Archibald, and that he had sold it to him some months before. If the admission of a debtor at the time he executes a conveyance, and as a part of it, that he had received a valuable consideration is not evidence of that fact, as against a creditor, of course a naked declaration made by him some months afterwards is no evidence of the fact.
It follows that the alleged assignment of the note was void as to creditors. There is
PER CURIAM. No error.
Cited: Tredwell v. Graham, 88 N.C. 214.