#### *Doe on the demise of*SAMUEL N. BLACK *vs.*DAVID T. CALDWELL.

The compromise of a doubtful claim to land, and a conveyance of the disputed land from a daughter and her husband to tho father, were properly left to the jury on a question as to the fairness of the conveyance of a deed from the father to the son-in-law.

A party seeking to avoid a conveyance as voluntary, has no ground to complain of tho principle thus laid down: “ Where a parent greatly embarrassed, which embarrassment ends in insolvency, makes a conveyance to a child, it devolves upon the child to show that he gave a fair price for the property, actually paid, either in money or money’s worth.”

AotioN of ejectMent, tried before Ellis, J., at the Spring Term, 1856, of Mecklenburg Superior Court.

Tbe lessor of tlie plaintiff claimed title to tbe land in controversy, by virtue of a sheriff’s deed, and a judgment and execution against "William Davidson, in 1853.

Tlie ground upon wbicli plaintiff’s lessor claimed to be a creditor was as follows: In 1823, William Davidson conveyed a tract of land belonging to his children, of whom tbe wife of defendant ivas one, to John Black, the ancestor of the lessor of the plaintiff, and covenanted for quiet enjoyment, and to make title wlien bis children should come of age. The defendant and bis wife refused to make title according to tbe covenant, but sued for tbe possession of their share of tbe land and recovered it. In 1853 Davidson confessed judgment to a suit for a breach of these covenants, and the execution issuing on this j udgment, was the process under which the land in question was sold.

In tlie year 1833, the said Davidson had conveyed the *151premises to the defendant, Ms son-in-law, bj a deed expressing a consideration of $5000. The deed was made in March, and registered in April following. At the May session following, of the County Court of Mecklenburg, judgments were obtained against the said Davidson for various sums, amounting, in all, to about $17,000.

*William Dmidson*was himself examined by the plaintiff, and he testified that when the deed was made to the defendant, no money was paid, and that the deed was made as an advancement to his daughter, the wife of the defendant; that he was in embarrassed circumstances at the time, but he was of opinion then, and still thought, that he reserved enough property to pay all his debts; that all the debts which he then owed had been discharged; that his property was all sold about the year 1841, for debts which had been contracted since; the deed was made to the defendant; that he had nothing, when plaintiff’s execution was levied, that could be taken in execution.

On being shown by the defendant’s counsel a deposition that had been given by him, to be read *de Toene*esse, he said that there was a valuable consideration for the deed in question ; that Thomas Davidson had devised 5000 acres of land to Mary L. Davidson, witness’ daughter, who died without issue, and supposing he was his daughter’s heir, he sold the same on a- credit, but the purchasers believing his four remaining children entitled to the land, refused to pay the purchase money until they should convey to him their interests, which they did in 1830, the defendant and his wife joining in the deed; that he had sold the land in 1824, and afterwards collected the money, ($11,000;) but he had been at great expense, and did not believe the defendant’s share would have been more than $1400 ; but he said the land had greatly increased in value since; that this indebtedness for the sale of the Tennessee land, did enter into, and form a part of the consideration of the deed in question; that the deed was not made to hinder or delay his creditors, for he told defendant that he would get no title unless all his debts, then due, were *152paid off. He said be mentioned this because he had conveyed the same land in a deed of trust.

. There was much other testimony as to the pecuniary condition of Davidson in 1833, the value of the land in question, and as to the value of the lands sold by Davidson in Tennessee, in which there was much discrepancy. The deed from defendant and wife to Davidson, recited that the said lands had descended to defendant from Thomas Davidson, and that the consideration of said deed was $10,000.

*John*im, a witness for the defendant, amongst other things, stated that, in 1836, as agent of the bank of Charlotte, he had made a scrutiny into the affairs of Mr. Davidson, and he then thought him worth at least $15,000, more than his indebtedness. He also stated that Mr. Davidson had told him that his children had conveyed property to him greater in amount than all he had conveyed to them, and that he was still indebted to them.

The Court being of opinion that notwithstanding the fact that the judgment under which the land in controversy was sold was subsequent to the conveyance to the defendant in 1833, that yet, as the covenant for quiet enjoyment was made before, and it was known to the defendant and to ¥m, Davidson, that the latter had no title to the land sold to Black, the obligee in that covenant would be placed upon the footing of a pre-existing-creditor, and, accordingly his Honor charged the jury that it was a debt existing at the time of the conveyance to the defendant in 1833. Upon the question of fraud he instructed that, if the conveyance from Win. Davidson to the defendant was voluntary, and without consideration, the plaintiff ought to recover, because it appeared that there was nothing else from which the execution under which the land was sold could be satisfied, though "Win. Davidson had other property enough to pay all his debts at the time of the conveyance. It was then submitted to them as a question of fact, whether the deed'was voluntary or not. They were told that the evidence showed an interest in the lands in Tennessee in the defendant and his wife, and they were charged to consid*153er that part of ¥m. Davidson’s testimony in wbicb be stated that the conveyance of their interest in those lands by the defendant and his wife, in 1830, was the inducement for his making the conveyance, and. entered into, and formed a part of the consideration for making the deed, in 1833, for the land in controversy, as evidence tending to show a consideration for the deed.

The Court further instructed ihe jury that where a parent greatly embarrassed with debt, which embarrassment resulted in insolvency, makes a conveyance of any part of his property to a child, it devolved upon the latter, should the conveyance be questioned, to show that he gave a fair price for the property, actually paid in money or money’s worth; that they should determine whether the conveyance of the defendant of his interest .in the lands in Tennessee entered into the consideration of the deed from ¥m. Davidson, and, if so, whether it was a fair compensation for the lands conveyed. Plaintiff’s counsel excepted to these instructions.

Yerdict for the defendant. Judgment and appeal.

*Wilson*and Dargan, for plaintiff.

*Osborne*and Boyden, for defendant.

Nash, C. J.

There is no error in the charge of his Honor. The case turns upon the evidence of Mr. Davidson. The defendant was his son-in-law, and the premises in question liad been conveyed to him by Mr. Davidson for a valuable consideration as expressed in the conveyance. The plaintiff alleges that no valuable consideration was paid by the defendant, and that the deed was voluntary and void as to the creditors of Mr. Davidson, and that he was one. Mr. Davids'on was introduced as a witness, and upon his examination in chief, stated that the conveyance was voluntary, and intended as an advancement of his daughter, Mrs. Caldwell. Ilis attention was called to a deposition given by him in a former suit, where the same question arose, in which he had stated that there was a valuable consideration for the conveyance. lie *154replied that it was so; that there was a valuable consideration ; that lie was younger then than be was now, and the transaction fresher in his memory. That when he made the conveyance he was much involved in debt, but reserved property enough to discharge them all, and, at the time, told the defendant that he would get nothing by the deed unless all the debts he then owed were paid, and that they were all payed ; that since then he had incurred heavy debts, and was unable to pay them all. In stating the consideration for the conveyance to the defendant, he stated that the defendant owned one-fourth of the tract of land in Maury County, in the State of Tennessee, and that interest, conveyed to him, was the consideration. lie further stated that the land in Maury County had been devised by Thomas Davidson to Mary L. Davidson, his daughter, who having died without issue, he considered himself the heir, took possession of it, and sold it for $11,000. The purchasers would not pay the money until he procured his children to join in the deed, which they did, the wife of the defendant being one of them, and that $1400 was the portion of each. Hpon this part of the case, his Honor instructed the jury, that where a parent, greatly embarrassed with debt, which embarrassment resulted in insolvency, makes a conveyance of any part of his property to a child, it devolved upon the child to show that he gave a fair price for the property' — actually paid in money, or money’s worth; and in this case, if they believed that Vm. Davidson’s embarrassment, in 1833, resulted in insolvency, they should return a verdict for the plaintiff, unless they were satisfied from the testimony that the defendant paid a fair price for the land in controversy. That they should determine whether the conveyance of the land in Tennessee entered into the consideration of the deed from Vm. Davidson, and, if so, whether it was a fair compensation for the lands conveyed.

¥e think the plaintiff has no cause to complain of this charge, and the jury were justified in the verdict they ren*155dered; for Mr. Davidson swore 'that the lands in Tennessee had greatly risen in value since he sold them.

We express no opinion upon the part of the charge in which his Honor decided, that the lessor of the plaintiff was a creditor of ¥m. Davidson at the time of the conveyance to the defendant. If there is error in it, it was in favor of the plaintiff, the appellant. The charge embraced substantially all the grounds upon which the Court were requested to instruct the jury.

Pee CueiaM. • • Judgment affirmed.