Triplett v. Witherspoon , 70 N.C. 589 ( 1874 )

Pjsarson, O. J.

His Honor erred in giving the instruction, *‘if the jury believe that the deed was made by Barnes to plaintiff Louisa, on a secret trust that she was to hold the legal title for the use and benefit of Barnes, plaintiff could not recover.”

This secret trust was void, and would not have been enforced by the Courts, because the purpose was to defraud creditors and purchasers, and such a trust is not fit to be executed.

It follows that the plaintiff Louisa had the legal title subject only to the rights of creditors and purchasers under 13 and 27 Elizabeth. There are no creditors in this ease; so 13th Elizabeth is out of the plaintiff’s way.

Witherspoon was a purchaser for valuable consideration, but he had notice of the conveyance by Barnes to the plaintiff Louisa, and under the act of 1840, he is not protected against this conveyance, although it was erroneous and made with a secret trust for the purpose of fraud.

This matter is settled by Hiatt v. Wade, 8 Ired., 340, where a construction is put upon the act of 1840, and the alteration in regard to 27th Elizabeth is so clearly stated that I will adopt the language of Chief Justice BuffiN : “ The statute, 27th Elizabeth, enacts that conveyances of land made with intent to defraud purchasers, shall, only as against purchasers, for good consideration-, be void; under that act,.it was, of course held that notice of the fraudulent deed did not impeach the title of the purchaser; because the bad faith of the deed vitiated it,, and with notice of the deed, the purchaser had also notice of the fraud. But the Legislature thought proper in 1840, to alter the law and declare, that no person- shall be deemed a purchaser within the meaning, of the former act unless he purchase the land for the full value thereof, without notice at the time of his purchase of the conveyance, alleged by him to be fraudulent.”

This language is as precise and positive as can. be.

Error.

Per Curiam, Vemre de novo.-