The defendants denied that the conveyance of the negroes aforesaid was made as a security, but insisted that the same was made truly for the purpose it expressed, of conveying to the defendant the absolute ownership of said slaves, sold by the intestate and purchased by the defendant, at the price of $818, actually paid therefor. The defendant said that his intestate had been nearly stripped by his creditors of all his property, except the said negroes; that an execution had been levied on them to raise the sum of $818; that his intestate, from motives of humanity, was anxious to prevent a sale of them under execution, and proposed to sell them all to the defendant; that the defendant had no immediate use for the slaves, and no desire to hold that species of property, and communicated these facts to the intestate, but, nevertheless offered to pay the sum of $818, the amount of the execution, to the sheriff, and take his intestate's conveyance of the slaves; that this being assented to, the defendant paid the said sum to the sheriff ($300 whereof he borrowed from John Shore) and took the bill of sale in question; that during the whole of this transaction not one word passed between the parties that the bill of sale should operate as a security; but that on the day after the business was concluded the defendant, knowing that the intestate expected, or had expressed an expectation, that an important equity suit, instituted by him in Rowan Superior Court, would be speedily decided in his favor, told the intestate that on refunding within three weeks the money paid by the defendant as the price of the negroes, the same should be reconveyed to the intestate; and defendant (214) declared that this was a purely gratuitous offer on his *Page 181 part and not the consequence of any previous agreement between him and the intestate. The defendant admitted that he permitted the said slaves, as he had no immediate use for them, to remain with the intestate, but averred that he took possession of them, after his intestate's death, as his own; and that at the time of selling the effects of his intestate he set up these also for sale, but that he offered them for sale as his property, and not as the property of his intestate; that the sale was for cash, and at a time when he thought he could obtain a full price for them, because he wanted to turn them into money; that they were run up beyond their value by Henry Hauser, one of the intestate's children; and that, knowing the said Henry had not the cash to pay for them, he had them bid off for himself by Jacob Conrad, at a price between $1,500 and $1,700; and that ever since he first took possession of the slaves he had continued to hold them, and yet held them, as absolute property, under the sale so made to him by his intestate. The plaintiffs, the next of kin of George Hauser, deceased, seek by this bill, from the defendant, the administrator of the said George, an account of his administration of the estate of the intestate. Their right to an account is not resisted, and a reference to a commissioner for that purpose follows of course, according to the usages of this Court. But there is one matter which has been distinctly put in issue by the pleadings, proper to be decided before the account is taken, and upon which the parties have brought the case to a hearing. [His Honor here stated the allegations of the pleadings above set forth and then proceeded as follows:] Upon the proofs, we hold it clear that the transfer of the slaves was not made as an absolute sale to the defendant; but that it was made upon an understanding between him and his intestate that the same should be a security for the money advanced and the liability incurred by him in raising the sum of $818 to pay off the encumbrance of the execution then levied upon them. All the (215) circumstances of the transaction are inconsistent with the idea of an absolute sale. A specific sum was wanted by a needy and hard-pressed man for a special emergency, and this precise sum was raised through the agency of his friend and near connection. Now, it is most extraordinary, if the object of the defendant was a purchase, that his offer should be regulated, not by any reference to the value of the property to be bought, but exclusively by the amount of the encumbrance from which it was to be relieved. In the next place, the price alleged to have been paid was grossly inadequate to the value of the slaves. The *Page 182 pretended sale by the defendant on 8 January, 1819, is certainly not a fair criterion of their value, for that was marked by many circumstances clearly intended and well calculated to prevent their bringing a full price. They were set up for sale all in one lot, and for cash, without any notice antecedent to the day of sale that they would be thus sold, and they were bid off at an unusually early hour of the day, before the arrival of several persons who went for the express purpose of purchasing some of them. Yet, even at this pretended auction, they were bid off by the defendant's agent, not, as he loosely alleges in his answer, at a sum between $1,500 and $1,700, but for the sum of $1,705 — more than twice the price which he alleges to have paid for them; and not a witness has been examined to show that they were not worth this sum. Now, making every allowance for the alleged solicitude of the intestate to sell the slaves himself, rather than permit them to be sold at execution, where is to be found the motive for selling them to the defendant for less than half the money which might be obtained for them from others? Besides, the transactions at the pretended sale in January, 1819, are utterly inexplicable upon the supposition that the defendant alone was interested therein. We have already seen that it was purposely so managed as to prevent competition. There is no doubt but that the negroes were put up as defendant's property, and not as the property of his intestate, and for cash, and that these matters were declared in a written notice affixed to a public place at the day of sale; but if (216) the object had been to command the highest price, why were they sold for cash, instead of the usual credit? or, if to be so sold, why was no previous notice given of the terms, so that purchasers should come prepared? Several witnesses who have been examined declared that they attended with the design of buying; that they attended under the expectation that the property would be sold on the usual credit, and that when they arrived, at an early hour, they were surprised to find that the sale was over, that it had been made for cash, and all the negroes bid in by Conrad. Moreover, the defendant declares that his object in the alleged sale was to turn this species of property, to the holding of which he has so strong a repugnance, into cash; and yet, we not only find him employing an agent to purchase the property apparently for the agent and in truth for himself, but actually holding the property as his own down to this day. But the case does not rest on these circumstances, strong as they undoubtedly are. There is unquestionable testimony, as we think, furnished by the defendant himself, as to the character of the alleged purchase of March, 1818, and the purposes of the pretended sale in January, 1819. On 2 February, 1819, the defendant addresses a letter to Samuel Thomas Hauser, one of the plaintiffs, in relation to the family and concerns of his late father, (217) in which he says, *Page 183 respecting the latter: "In my last I mentioned to you that I had purchased the plantation at sheriff's sale for $2,210. I have taken possession of Will and his family, and keep them on the place for the sum of $1,705 — this being the highest bid, and was the only way to establish the value of them." It is manifest, therefore, that he held himself accountable, if he kept the negroes, for their actual value, and that the stratagems resorted to in order to prevent competition at the bidding were to enable him to claim them at a price short of their actual value.
But this is not all. The defendant avers in his answer that the sum of $300, part of the price which he actually paid for the purchase of the negroes, was borrowed by him at the time from John Shore. Shore has been examined as a witness, and declares that application was made him for the loan of this money, first by George Hauser in person and afterwards by John Henry Hauser in behalf of his father, George; that when this second application was made, Henry produced a letter from the defendant, which the witness exhibits, and which is dated on 6 March, 1818, and is in these words:
"MR. JOHN SHORE: If you can oblige the bearer, J. H. Hauser, with $200 or $300, I will be his security for the payment against the time he promises."
That thereupon the witness lent the money, and took the note of J. H. Hauser and the defendant, the said Hauser signing first. The witness further adds that this note remained unpaid, except the interest thereon, until 1832 or 1833, when the defendant took it up and gave his bond for the amount. It is not, therefore, true that at the time of the alleged purchase of the negroes in March, 1818, the defendant had paid the price. Three hundred dollars, part of the sum of $818 wanted to relieve the negroes from the execution, were borrowed by the intestate himself, or by his son on account of the intestate, and the defendant had only made himself liable therefor as a surety of the borrower.
Upon the whole view of the allegations and proofs, the Court declares that the slaves in question were conveyed to the defendant only as a security for the moneys by him advanced and the liabilities by him incurred, in removing the encumbrances of the execution then levied upon them, and that the pretended sale of them by the defendant, in January, 1819, has in no manner affected the rights of the next of kin of the intestate in the equitable interest which the intestate had therein at his death.
PER CURIAM. Decree accordingly.
Cited: Green v. Collins, 28 N.C. 151; Lash v. Hauser,37 N.C. 490; Blackwell v. Overby, 41 N.C. 45. *Page 184
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