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ence to a few of the opinions of this court will show their general tenor: In Spruill v. Insurance Co., 120 N. C., 141, during my first term upon the bench, it is said for a unanimous court: "Where there is no evidence, or a mere scintilla of evidence, or the evidence is not sufficient in a just and reasonable view of it, to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. That the verdict should be directed against the party upon whom rests the burden of proof, is the essence of the rule. . If the verdict of a jury is in the opinion of the court against the weight of evidence, it can be set aside, and to the proper exercise of this discretion there can be no objection. But to permit the judge to pass upon the sufficiency of the evidence necessary to rebut a legal presumption without submission to the jury would infringe upon the exclusive powers of the jury. The rule laid down in some authorities that wherever the judge would be justified in setting aside the verdict as against the weight of evidence, he would be equally justified in taking the case from the jury and directing a verdict, can not receive our sanction. It is not the law in North Carolina and never can be under our present Constitution."

In White v. Railroad, 121 N. C., 484, 489, Justice Furches, speaking for a unanimous court says: "The court can never find, nor direct an affirmative finding for the jury. The most the court can do is to instruct the jury, where there is no conflict of evidence, that if they believe the evidence they should find yes or no, as the case may be." In Wood v. Batholamew, 122 N. C., 177, 186, Justice Furches, again speaking for a unanimous court, says: "The burden of the issue of contributory negligence is on the defendant. It is an affirmative issue and cannot be found by the court. It


must be determined by the jury." In Bank v. School Com., 121 N. C., 109, the same Justice speaking for a unanimous court says: "But no matter how strong and uncontradicted the evidence is in support of the issue, the court cannot withdraw such issue from the jury and direct an affirmative finding." The same words are quoted with approval by Justice Montgomery, speaking for a unanimous court, in Crews v. Cantwell, 125 N. C., 516 (519). In Cox v. Railroad, 123 N. C., 604, this court, Chief Justice Faircloth alone dissenting, says: "A negative presumption necessarily accompanies the burden and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof. . . . Where there is evidence tending to prove negligence on the part of both parties, the case must always be submitted to the jury, and it makes no difference if this evidence appears in the testimony of the plaintiff. The court may say to the jury that there is no evidence tending to prove a fact but it can never say that a fact is proved. . . . . It is a settled rule of this court that a verdict can never be directed in favor of the party upon whom rests the burden of proof, who in all cases is considered to have the affirmative of the issue, whatever may be its form." "The burden of proving contributory negligence is always upon the defendant. Therefore a direction in his favor, based in any degree upon the contributory negligence of the plaintiff, would be a direction in favor of the party upon whom rested the burden of proof, which is directly opposed to the uniform current of our decisions. If there had been any reasonable doubt that the burden of proving contributory negligence rested upon the defendant, it has been set at rest by Chapter 38 of the Laws of 1887. . . . It therefore follows that on a motion for non-suit the court can consider only the evidence relating to the negligence of the defendant, and if there is more than a scintilla tending to prove such negligence, the

Vol. 132-60


motion must be denied and the case submitted to the jury." In Bolden v. Railroad, 123 N. C., 614, this court, with a single dissent, says: "By force of statute, as well as a settled rule of decision, the plea of contributory negligence is an affirmative defence in which the burden, both of allegation and proof, rests upon the defendant." In Cogdell v. R. R., 124 N. C., 302, it is said by a unanimous Court that: "Contributory negligence and assumption of risk, being in the nature of pleas in confession and avoidance, are affirmative defences, and cannot be considered on a motion for non-suit." A large number of other cases might be cited. The cases of Spruill v. Insurance Co., and Cox v. R. R., have been repeatedly cited with approval by this Court both before and after the rendition of its opinion in Neal's case. In House v. R. R., 131 N. C., 103, Cook, J., speaking for a unanimous court, says: "The principle that the Court cannot direct a verdict in favor of a party upon whom rests the burden of proof is now too well settled to admit of discussion. Cox v. R. R., 123 N. C., 604, and cases there cited." In Dorsett v. M'f'g Co., 131 N. C., 254, Chief Justice Furches, speak ing for a unanimous Court, cites Cox's case twice with approval, as well as Bolden v. R. R., 123 N. C., 614.

The reason for the rule as above laid down is clear. It is there bounded by what may be called natural landmarks, the distinct line of separation between an affirmative and negative finding. Itself the logical deduction from the Act of 1887, and depending for its location neither upon metaphysical angles nor artificial stakes, it is in itself capable of accurate definition and intelligent application. For this reason it is constantly recurred to except in a few cases where the requirements of natural justice, irrespective of the strict rules of law, have seemed to the Court to justify a departure therefrom. Hard cases are "the quick-sands of the law,"


and it is not safe to bend the rule too far. Curves may the lines of beauty, but those of right are usually straight.

CLARK, C. J., concurs in the dissenting opinion.



(Filed June 11, 1903.)

1. CURTESY-Husband and Wife-Wills-Constitution 1868-Married Women.

Since the Constitution of 1868 a married woman may by will deprive her husband of curtesy in her separate estate.

2. DEEDS-Estoppel-Fraud-Bankruptcy.

Where a person to defraud his creditors conveys land and afterwards becomes a voluntary bankrupt and the trustee in bankruptcy in behalf of the creditors sells the land and the bankrupt through another becomes the purchaser, whatever title he gets by the deed of the trustee accrues to the benefit of the original grantee.

PETITION to rehear this case, reported in 130 N. C., 482. Petition dismissed.

Merrimon & Merrimon, and Shepherd & Shepherd, for the petitioner.

Chas. A. Moore, Zeb Weaver and Locke Craig, in opposition.

WALKER, J. This is a petition to rehear the above entitled case, which was decided at the February Term, 1902, and is reported in 130 N. C., 482.

The assignment of error in regard to the defendant's claim for an estate by the curtesy in tract No. 2, known as the Chunn land, cannot be sustained. As the parties were married before 1868 and the land was acquired in 1877, the


defendant was entitled to an estate by the curtesy, at the death of his wife, provided she had died intestate or had not disposed of the property by her will to some one else. Tiddy v. Graves, 126 N. C., 620. It appears in this case that Mrs. Slagle died leaving a will in which she devised the said property to the plaintiff. When a marriage has taken place prior to the dower act of 1867, and the husband has acquired land after its passage, the wife is entitled to dower, because, as soon as the land is acquired, the right of dower attaches to it. O'Kelly v. Williams, 84 N. C., 281. So when the marriage has taken place before the date of the ratification of the Constitution of 1868 and the wife has acquired property after that date, the provisions of the Constitution in regard to the separate estate of the wife and her power to devise her property immediately become operative and affect all of the rights in the property thus acquired, and the husband's estate by the curtesy, unlike that which existed prior to August, 1868, only becomes consummate upon the death of the wife intestate. Holliday v. McMillan, 79 N. C., 315; Morris v. Morris, 94 N. C., 613; Kirkman v. Banks, 77 N. C., 394. By the marriage before August, 1868, the husband acquired no such vested right in the future acquisitions of the wife as to prevent the application of the provisions of the Constitution and statutes to his right of curtesy. A mere expectancy or possibility of future acquisitions is not a vested right. Holliday v. McMillan, supra. Property is always acquired subject to the laws existing and in force at the time. O'Kelly v. Williams, supra.

The principal question in the case, and, indeed, the only one discussed before us, relates to the estoppel which plaintiff alleges arose out of a deed to Mr. Woodfin and was fed by the title acquired by the defendant under the deed of Reynolds, assignee in bankruptcy, to him, whereby the plaintiff's

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