#### RICHARD FELTON *v.*JOSIAH R. WHITE.

Where, in a question whether a certain deed was fraudulent and void as to creditors, facts were adduced and relied on by both parties, and many of the usual badges of fraud were proved; among other facts, it appeared that a small balance, out of a large consideration recited in the deed, was unpaid, it was error in the Court to make the question of fraud turn upon the payment, or the non-payment, of the *whole,*consideration expressed in the deed.

ActioN of TROVER, for the conversion of John, a slave, tried before Ellis, J., at the Spring Term, 1857, of Perquimons Superior Court.

The slave in question, with fifteen others, was given by the will of one Kedar Felton to one Townsend, for his life, and after his death without children, to the plaintiff and his brother Elisha Felton.

The plaintiff introduced a bill of sale for all the negroes, from Townsend to him, reciting the consideration of two thousand dollars, dated October, 1855, and witnessed by one Elisha Felton, the brother of the vendee. Both he and the vendee were the uncles of the vendor Townsend. At the time of the alleged sale, Townsend was much in debt, and only had personal property, beside these negroes, to the amount of three hundred dollars, which was subsequently sold under *302execution. He bad also a tract of land, wbicb brought in a rent of twenty-five dollars. After the execution of the bill of sale, the slaves went into the possession of the plaintiff for a short time, and then went bach to the possession of Townsend. The latter lived upon a plantation which he had formerly owned, but which he had sold to his father-in-law. Eor the then current year, however, this plantation had been rented by the plaintiff. The negroes mentioned in the bill of sale remained with Townsend upon this plantation, until they were seized by the defendant, as sheriff, under executions, except that on one occasion they were sent to the plaintiff at Hert-ford for the purpose of being hired out, and, after a day or two, returned into his possession.

No money was paid at the execution of the bill of sale, but both the subscribing witnesses and the vendor Townsend, swore that it was agreed that the price of $2,000 was to be paid by the vendee’s taking up claims against Townsend to the amount of $2,000. The plaintiff did take up claims against Townsend to the amount of $1,920, and gave his note for the remaining $80 to Townsend, which -was still unpaid. Some of these debts were executions levied on tire property conveyed, and all of them were *bona, fide.*

Townsend swore that, after the sale, the slaves remained with him, as the property of the plaintiff, he acting merely as his agent; that he received no wages, nor contracted for any; that he made no return of sales, nor of negro hires, and that there was no understanding between him and the plaintiff, that he should do so. He said that nothing was made on the farm for sale, but that all it produced was consumed by the family and *negroes;*that he had the entire control of *the*slaves and other property, and had not received any instructions from the plaintiff in regard to it; that the latter had not been upon the premises since the date of the bill of sale. He swore that there was no arrangement or understanding, at any time, that he, Townsend, was to have a beneficial interest in the property, and that he had no design of delaying or defrauding his creditors.

*303It appeared that two thousand dollars was a fair price for Townsend’s life-estate in the slaves.

The Court instructed the jury 'that he who alleged fraud must prove it. That the defendant in this case did allege fraud, and to entitle himself to a verdict, he must prove the fraud as alleged. That inasmuch, however, as Townsend was admitted to be largely indebted beyond his ability to pay, and all these facts were known to the plaintiff and Townsend at the time of the execution of the bill of sale; and as the transaction was between near relations, (the plaintiff and the subscribing witness being the uncles of the bargainor,) it must appear that the $2,000 recited as the purchase-money was a fair price for the slaves, and that it was actually paid by the plaintiff, otherwise the transaction would not be supported, but would be fraudulent as to creditors. It was left as a bur-then upon the defendant to satisfy the jury that a fair price had not been given for the slaves if such were the fact, but it was imposed upon the plaintiff as a burthen in view of the facts recited to prove that he had actually paid the purchase-money for the slaves, and failing to do so, the defendant would be entitled to a verdict. Plaintiff excepted to this charge. Yerdict for the defendant. Judgment and appeal.

Heath, for the plaintiff.

No counsel appeared in this Court for the defendant.

Nash, C. J.

The plaintiff excepts only to that portion of his Honor’s charge which relates to the payment made by the plaintiff to the witness, Townsend. The latter had a life-estate in certain slaves, among whom was the negro Tom, the subject of this suit, and all of whom he sold to the plaintiff, as is alleged, at the price of $2,000, which was their value. The transaction had many of the usual badges of fraud, but was averred by the plaintiff to have been fair and *bona ficle.*Townsend was examined as a witness, and stated that though no money was paid to him, yet the price agreed on between him and the plaintiff was to be paid by the latter, in discharg*304ing debts of bis to that amount, and the plaintiff did discharge debts honestly due by Townsend to that amount, except about eighty dollars, for which he gave Townsend his note. The defendant justified taking the slave in question, under an execution against Townsend, alleging the sale to the plaintiff by him to have been fraudulent, and void as to creditors, he being, at the time, greatly indebted.”

His Honor instructed the jury, in sizbstance, that as the defendant alleged that the sale t© the plaintiff was fraudulent, he must prove it, and after setting forth the apparent badges of fraud attending the transaction, he proceeds as follows: “ It must appear that the two thousand dollars was a fair price for the slaves, and that it was *actually paid*by the plaintiff, otherwise the action could not be supported, but would be fraudulent as to creditors,” and closes Ms charge by instructing the jury “that it ivas imposed as a burthen upon the plaintiff, in view of the facts recited, to prove that he had *actually*paid the purchase-money for the slaves, a®d failing to-do so, the defendant would be entitled to a verdict.

It is very certain the alleged sale of the slaves by Townsend had many, if not all, the usual badges of fraud. Fraudulent, however, as it apparently was, it was open to the plaintiff to show, if he could-,, that the transaction was a fair and *tona fide*one. He was at liberty to show that the price agreed on was the full value of the slaves, and that he had paid that price. Townsend, whose testimony was received without objection, swore that the price of the slaves was to be dischared by paying debts due by him, audit ivas proved that the plaintiff had paid debts of Townsend to the amount of $1,920, leaving unpaid the small sum of $80, for which he gave Townsend his note. It was proved that the interest of Townsend in the slaves, at the time of the conveyance, was worth $2,000. His Honor committed no error in charging the jury that it was incumbent on the plaintiff" to show that he had paid the purchase-money; but we think he erred in charging them that from it they might rightfully infer that if any part of the price, however small, was unpaid, the price had not been ac*305tually paid. Such must have been the impression produced on the minds of the jury; for there is no suggestion that the plaintiff had not paid to the creditors of Townsend $1,920 ofit of the $2,000 ; nor was there any question made that the claims so paid by him were not fairly and honestly due from Townsend, His Honor ought to have instructed the jury as to the $80, that the deficit in the non-payment of so small a part of so large a sum, ought bot to deprive the plaintiff of the benefit resulting from the payment actually made by him, if they were satisfied of the *bona fides.*Believing that this point was not placed before the jury in its proper light, and that injustice may have resulted to the plaintiff from the error, we think he is entitled to have his case examined by another j ury. *Venire de novo.*

Pee CueiaM. Judgment reversed.