Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-12-05
COUnT DECISIONS.
Notes of Cases Recently Decided,
Which are of lnteres! 70
Our People.
DlcEsTED BY w. q. MARTIN.
Exclusively for Virgin.an-Pilot.)
HOWARD v. TURNER.

supreme Court Of North Carolina, Octo-
Der 81, 1899.
a DEED WILL NOT BE SET ASIDE
FOR WANT OF CONSIDERATION
AT THE SUIT OF THE GRANTOR.
UNLESS THE RIGHTS OF THIRD
PARTIES. INTERVENE, THOUGH
SUCH WANT OF CONSIDERATION
MAY BE EVIDENCE OF FRAUD
ON GRANTEES PART
THE BURDEN OF WANT OF CON
SHERATON AND DURESS IF
CHARGED IS UPON THE PLAIN
TIFF IN SUCH a CASE.
This was an action to set aside a
deed There was IL judgment in the
lower court for defendant and plain
tiff appealed.
The facts are shown in the opinion of
the court.
The court says:
In 1884 the plaintiff bought lot in
the town Of Hillsboro, at public sale
for SIS, paid s25 thereon, and gave two
notes Of S25 each for the balance of the
purchase money, on one of which notes
he has since said $40, and has paid
nothing more. On the first day of Sep
TENDER. 1896, the plaintiff executed Il
deed to the defendant, DcvcreuN Tur-
ner, conveying said lot TO him. and
this action is brought to set aside and
cancel that deed. The plaintiff asks
this relief upon two grounds: First.
that said deed was made without con-
sideration; and, secondly, that it was
made through fraud and undue in
iiuence. These allegations were denied
by the defendant, and the following
issues were submitted to the jury: cd
Was the deed from plaintiff to defend
-, tos. II -, IL
sideration? (2) Was the deed procured
L" threats. or "larm excited in the
mind of the In ntiff by the defendant?"
The jury answ e. ed he first ssue Yes"
and the second NO" Upon the coming
inl of the verdict of the jury, both
parties moved the court for judgment.
The court declined to give the plain
tiff Judgment and signed Judgment for
the defendant. This constitutes the
ground OF plaintiffs first exception.
But the court instructed the jury that
the burden of este blshing the afIirma-
tive or both these issues was upon the
plaintiff, and this forms the grounds
Of plaintiffs second exception. Mel
ther one OF the exceptions can be Sus-
tanned 1t was insisted for the plaintiff
that, the jury having found that the
deed from plaintiff TO defendant was
without consideration, this fact alone
raised an equity in favor of the plain
titE SuInclent 10 set aside the deed.
But we do not think so. a deed in
proper form is good, and will convey
the land described therein without
any consideration. This seems to be
settled law in this state. y court OF
equity will set aside n deed for want
of consideration where creditors OF the
grantor are interested or where there
is subquent purchaser for valuable
consideration. without notice of the
former conveyance. But this is under
the statute of frauds. which does not
apply In this case. The want OF con
sderation may be shown as evidence
of fraud, although the lack of consider
alton does not Of itself constitute fraud
And the court might hove instructed
the jury that, if they found there was
no consideration they might consider
this fact as an evidence of fraud in
passing upon the second issue. But
the judge was not requested to so
charge. and, If he did not, 1t must he
considered rs mere omission,-an
NEUTRALITY-SUSPICIOUS. which we cannot
give a new trial. The second exception
is also untcnable. The general rule is
that he who alleges fraud, undue in
flucnce, or intimidation must prove 1t.
Affirmed.