
    Chesley Smith vs. Young J. Culbertson and Mary McCrackan.
    Conveyance of land for valuable consideration held void, tbe jury having found that it was made with the intent to defeat the cause of action in a suit pending.
    After a jury have dispersed, an affidavit by one of the jurors to shew misconduct in himself and his fellow jurors in the jury-room, will not be received.
    BEFORE WARDLAW, J., AT LAURENS, EXTRA TERM, AUGUST, 1855. ■
    The report of his Honor, the presiding Judge, is as follows :
    “ Trespass to try titles.
    “ The plaintiff claimed under a sheriff’s sale made by virtue of a fi. fa. against Andrew J. Culbertson; the defendant, Y. J. Culbertson, claimed by force of a conveyance from Andrew J. Culbertson older than the fi. fa. against Andrew J. Culbertson, and the question in the case was, whether the transaction in which the title was transferred from Andrew J. Culbertson to Young J. Culbertson was void. The plaintiff contended that it was because, as he alleged, it was fraudulent, having been intended to defeat the demand under which subsequently the fi. fa. was issued, and the land sold to the plaintiff.
    “Andrew J. Culbertson is the son of Young J. Culbertson, has no separate means, and has always lived with his father except during unimportant absences. About January, 1861, there was talk of an engagement to marry subsisting between Andrew J., Culbertson and Elizabeth Smith, daughter of plaintiff. The tract of land now in question, ninety-four acres, lying near to Young J. Culbertson’s, was conveyed by Elizabeth Watkins and her son, David Bell, to Andrew J. Culbertson, with warranty, in consideration of four hundred and fifty dollars, Young J. Culbertson being one of the witnesses to the deed of conveyance, and the purchase money having been paid by the note of Andrew J. Culbertson and of Young J. Culbertson, his surety, payable at twelve months.
    “ On the 26th of August, 1851, Elizabeth Smith issued her writ against Andrew J. Culbertson, for breach of marriage contract, on which was an order for bail; August 27th, 1851, the sheriff saw Andrew J, Culbertson and Young J. Culbertson, and attempted to arrest Andrew J. Culbertson, but failed to do so. August 28, 1851, Young J. Culbertson, Andrew J. Culbertson, David Bell, John Henderson, Esq., and John Culbertson, brother of Young J. Culbertson, were together in the morning. John Henderson, Esq., drew a conveyance from Andrew J. Culbertson to Young J. Culbertson, but after some conference that was destroyed, and two other deeds conveying the land above mentioned were drawn and executed, viz. ; one from Andrew J. Culbertson to'David Bell, and the other from David Bell to Young J. Culbertson ; (the latter with warranty.) The note before executed was delivered by Bell to Young J. Culbertson, and another note, for the same sum, payable at the same time, was made and delivered by Young J. Culbertson to David Bell,
    ■ “ In October, 1852, Elizabeth Smith recovered judgment in the action for breach of marriage contract, against Andrew J. Culbertson, and under a fi. fa. in that case, the sheriff, in February, 1854, sold and conveyed the land to the plaintiff.
    “ A daughter of Young J. Culbertson testified that when Andrew J. Culbertson was, before the first conveyance, bargaining about the land, Mrs. Watkins said that if he got dissatisfied with the land in twelve months, she would take it back, and if she wanted it he must give it up ; and that when David Bell came he said he would abide by any agreement they made.
    “ I submitted the question of fact concerning the imputed fraud to the jury. Three months elapsed after the trial before I was served with the grounds of appeal, and I have not now a very distinct remembrance of what I said to the jury. I know that I submitted the question as one depending upon intention, and that when the jury, after a considerable absence, returned for instructions, and expressed their sense of the difficulty of knowing what parties intended, I told them they must meet the difficulty, and, as well as they could, decide, from what was done, from what was said, from circumstances, probabilities and presumptions, what were the motive and purpose of the transaction, the thoughts and desires of the parties. I said that if the first contract had been rescinded, and a new one made in pursuance of a Iona fide understanding that had subsisted previously, or if Young J. Culbertson, had, in procuring the transfer of the land to himself, the mere purpose of indemnifying, himself against his suretyship, then there was no fraud; but that if the purpose of the transaction had been to hinder, delay or defeat Miss Smith’s cause of action, then the whole transaction was void.
    “ The jury found for the plaintiff the land and damages.”
    The defendant, Young J". Culbertson appealed on the following grounds, to wit:
    1. Because it is respectfully submitted his Honor, the presiding Judge, erred in charging the jury that if any other motive actuated the defendant Culbertson, to purchase the land in dispute, than a simple desire to save himself from loss on account of his liability as surety on the note given by his son Andrew Culbertson, then the transaction was fraudulent.
    2. Because it was (according to the proof) the understanding between the parties at the time of the conveyance to Andrew Culbertson, that the land should be reconveyed, provided he desired, and therefore no fraud could be inferred from such reconveyance, and the subsequent conveyance to the defendant, Y. J. Culbertson.
    3. Because the jury was misled by the decision in the case of Lowry and Pinson, which was cited, but which had no analogy to this case, and his Honor should have so instructed the jury.
    4. Because the defendant Y. J. Culbertson, was surety upon the note given by Andrew Culbertson, for the purchase (no part of which had been paid) and in any view of the case had a right to save himself in the premises, and no presumption of fraud could arise from such transaction.
    5. Because the defendant, Young J. Culbertson, purchased the land in question, paid a fair price for the same, and there is no evidence of collusion or unfairness in the same.
    6. Because the verdict is otherwise contrary to law and the evidence.
    At the hearing in this Court, the defendant presented an additional ground of appeal, to wit.: “ Because the jury decided by ballot;” and to sustain it he presented an affidavit by one of the jurymen, and a certificate by three others, to the effect that the jury were equally divided, and they finally agreed that the matter should be determined, and it was determined in the following manner, to wit.: Twelve ballots with the name of the plaintiff, and twelve with the names of the defendants written thereon, were placed in a hat. 1 Each juryman then drew a ballot from the hat. At the first drawing, six with- the name of the plaintiff, and six with the names of the defendants thereon, were drawn. They then drew again, and the plaintiff’s name was found on seven of the drawn ballots: whereupon the verdict was given in his favor. •
    
      Sanderson for appellant.
    
      Sullivan, contra.
   The opinion of the Court was delivered by

Wardlaw J.

If the verdict in this case was a just response to the questions which were submitted to the jury, it has established that the transaction by which the land was conveyed to the defendant, Y. J. Culbertson, was not the execution of a new contract made in pursuance of a previous bona fide understanding ; that Y. J. Culbertson in procuring the transfer of the land to himself, was not actuated merely by the motive of obtaining indemnity against his suretyship; and that there was a fraudulent intention in the parties to that transaction, their purpose having been to hinder, delay or defeat Miss Smith’s cause of action. It cannot be said that there was not evidence to sustain the verdict. Men might honestly differ in the conclusions which they would draw from the testimony that was adduced, but the most charitable would be forced to acknowledge that there was something which required explanation, if it did not excite suspicion, in the destruction of the paper that was prepared to convey the land directly from the son to the father when no legal incumbrance existed, and the substitution of two deeds and a new note, which might well be supposed to have been intended to cover up and conceal the fact that title had been in the son. Supposing the fraudulent intention to have been found, we perceive that the case is like that of Lowry and Pinson, 2 Bail. 324 — not in the particular circumstances, but in the principles which governed that case. The observations which in the opinion given in that case were deduced from Twyne’s case, 3 Rep. 82; Worsley vs. De Mattos, 1 Burr, 474, and Cadogan vs. Kennett, Cowp. 434, apply with as much force to this as to that. Upon the grounds of appeal which were served' upon the circuit Judge, this Court then finds no reason for its interference.

An additional ground of appeal has, however, been exhibited in this Court, imputing misconduct to the jury in the jury-room, and founded upon an affidavit of one of the jurors, which is confirmed by the certificates of three others. Without dwelling upon the three months which elapsed between the rendering of the verdict - and the date of the affidavit, this Court has proceeded to consider the propriety of receiving the affidavit of a juror, made after the separation of the jury, to show the misconduct of himself and his fellow-jurors in the jury-room. In several cases which have been before this Court within the last ten years, (Pulaski & Co. vs. Ward, 2 Rich. 120; Cohen vs. Roberts, 2 Strob. 416, and McCarty vs. McCarty, 4 Rich. 599,) affidavits of jurors and others have brought to the notice of the Court matters which imputed misconduct to some of the parties, their agents or friends, or to some of the jurors when they were out of the jury-room, and properly subject to the observation of other persons. In .such cases the Court has exercised its discretion, with intimations of the necessity of subjecting the introduction of such affidavits to severe restrictions.

But here' the privacy of the jury-room is to be invaded. The grounds upon which the assent of the jurors to the verdict publicly rendered was given are-to be scrutinized; and men sworn to render a true verdict according to the evidence, are to be heard declaring that they agreed to abide the determination of chance, and yielded their assent to the verdict only because they had entered into this agreement, plainly repugnant to the obligation of the oath they had taken.

The mischiefs, the delays, the arts, the scandal likely to ensue,, come naturally to our thoughts, when we .imagine encouragement given to the pursuit of jurors by disappointed suitors, for the purpose of obtaining affidavits to invalidate verdicts regularly rendered. Any affidavit made by a juror for this purpose, .after separation of the jury, is dangerous and suspicious-; but especially so is an affidavit showing gross impropriety, in which all the jurors participated, and which, at its. commission, was known only to themselves. A verdict decided by chance may be set aside; so may be a verdict which was decided by a bare majority of the jury, and one which was rendered against the will of any juror. Yet verdicts must generally be attained by compromise of some sort. The reasons of various jurors are no doubt often ridiculously absurd. There must, however, be an end of litigation. After a verdict had been rendered, and the jurors have dispersed, a juror 'would not be heard who would say that his assent was forced, or was given under some misconception, or according to some chance, whose decision he had privately resolved to adopt. His public solemn act would refute all such after-thoughts; and his silence, when he should have spoken, would outweigh his subsequent assertions. With like reason, the solemn act done by a jury as a body, should not be invalidated by affidavits contradictory of it, which some or all of the jurors may make concerning the private reasons which influenced the body, imputing misconduct to themselves, and not to other persons. Whether they have been misled by sophistry or mistake, or have adopted the determination of a majority or of chance, they have upon their oaths unanimously rendered a verdict in solemn form, and high considerations of justice and policy place that verdict beyond their future influence. Decency itself forbids that they should assail it by disclosing, to their own shame, the secrets of their conclave.

After experience of the consequences which must result from receiving affidavits of jurors such as that now before us, the Courts in England and some of these United States have declared them wholly inadmissible. (Vaise vs. Delaval, 1 Term. Rep. 11; Owen vs. Warburton, 4 Bos. & Pul. 326; Dana vs. Tucker, 4 Johns. 487; Willing vs. Swassey, Browne’s Penn. Rep. 127.) We are therefore of opinion that the affidavit made in support of the additional ground of appeal in this case cannot be heard.

Motion dismissed.

O’Neall, Withers, Whither, Glover and Muhro, JJ., concurred.

Motion dismissed.  