Under that statute, North Carolina courts routinely provided binding jury verdicts for questions of fact arising in cases in equity. Van Hecke, Trial by Jury in Equity Cases; see, e.g., Strudwick v. Ashe, 7 N.C. 207 (1819); Williams v. Howard, 7 N.C. 74 (1819); Thigpen v. Balfour, 6 N.C. 242 (1813); Jordan v. Black, 6 N.C. 30 (1811); Jackson v. Marshall's Adm'r., 5 N.C. 323 (1809); Smith v. Bowen, 3 N.C. 296 (1804); Mourning v. Davis, 3 N.C. 219 (1802); Scott v. McDonald, 3 N.C. 98 (1799). The citizens of North Carolina ratified their second constitution in 1868.
The principle underlying these decisions is that the intent governs although the grantor may have believed that the claim being pressed against him is fictitious, and has no foundation in law or equity. It is considered that the moral quality of the act resides in the intention; and to protect public welfare the courts will deny a complainant relief where his cause of action arises ex turpi causa, or from the transgression of positive law. The principle is well stated and vigorously applied in Pride v. Andrew, 51 Ohio St. 405; Carson v. Beliles, (Ky.) 1 L.R.A. (N.S.) 1007; Tantum v. Miller, 11 N.J. Eq. 551; Jackson v. Marshall, 5 N.C. 323, 3 Am. Dec. 695; Ratliff v. Ratliff, 102 Va. 880; Holliday v. Holliday, 10 Iowa 200; Jones v. Jones, 20 S.D. 632, 108 N.W. 23, and Messer v. Ziegler, (Tex.) 282 S.W. 620. Other courts have reached opposite conclusions, holding that a deed to defraud creditors is not fraudulent unless there are creditors to be defrauded, and that where the deed is made to avoid satisfaction of a possible judgment in a pending suit, the grantor may recover back the property after the suit has been decided in his favor. The reason for these decisions is that the statute is violated only when there are creditors to be defrauded, and when the statute does not apply, the courts should enforce the rights of the parties in accordance with their contract.
The writings were made subsequently to the transfer of the legal title, and appear to be entirely voluntary. It is alleged by the defendant that the conveyance to her devisor was made for the purpose of defrauding the creditors of the plaintiff, and that, as the plaintiff does not "come into equity with clean hands," he is entitled to no relief. Turner v. Eford, 58 N.C. 106; Jackson v. Marshall, 5 N.C. 323; Vick v. Flowers, ib., 321; York v. (162) Merritt, 77 N.C. 213. Testimony was offered tending to establish this defense, but upon objection it was excluded by the court, and the defendant excepted.