37 S.E. 81 | N.C. | 1900
This action was commenced in the Superior Court, returnable in term time, by G. W. Baker against Henrietta Carter and W. P. Carter, on 22 September, 1898, and is therefore a civil action, and not a special proceeding. In his complaint the plaintiff alleges that Wiley Carter, the husband of Henrietta and father of W. P. Carter, who was (93) then dead, and whose estate had no personal representative, was indebted to him at the time of his death; that said Wiley, on 5 February before he died in May following, *63 conveyed the tract of land on which he lived, worth $1,000, to he said Henrietta, for life, with remainder to the defendant W. P. Carter; that this conveyance was without consideration, and void as to creditors, under the statute of frauds; that the said Wiley in the same conveyance gave all his personal property to the defendant Henrietta, in fraud of his creditors, and thereby rendered himself insolvent — and asks that the deed for said land and the conveyance for said personal property to defendants be set aside and vacated for the reason of said fraud. To this complaint the defendants demurred upon the ground that the complaint did not set forth a cause of action, and for the reason that the Court had no jurisdiction, as the personal representative was a necessary party. This demurrer should have been sustained, and the action dismissed. But it does not appear that there was ever a ruling by the Court upon the demurrer. And after the action had been pending more than a year there was an order making the plaintiff Brown, who qualified at that term of the court as administrator of the said Wiley Carter, a party plaintiff, and allowing the action to be "turned into a creditors' bill." This was done, and the said Brown, as administrator, and a number of other persons, who claimed to be creditors of the said Wiley Carter, made themselves plaintiffs; and the pleadings were reformed so as to make it a so-called creditors' bill, in which the insolvency of the said Wiley was set forth, and the fraudulent conveyances of the land and personal property, and again judgment was asked setting aside said conveyances for fraud. And it is stated that this order, and the making of new parties, and the amended or substituted complaint were made without objection on the part of the defendants. And before the trial the only original plaintiff, George W. Baker, took a nonsuit and "withdrew from (94) the action." But the Court went on with the trial, and submitted issues to the jury, who found that said conveyances were fraudulent, upon which the Court set aside and vacated the said conveyances and ordered a sale of the land, although this had not been asked in the plaintiff's prayers for judgment.
We do not deem it necessary to discuss the right of the original plaintiff, Baker, to maintain his action as originally, brought, as he took a nonsuit and "withdrew from the action" before the trial. But it seems to us to be so apparent that he could not have maintained his action, that it would need no discussion if he had not abandoned it. It therefore remains to be seen whether the new plaintiffs, under the new complaint, can maintain this action. If Wiley Carter had not been dead, the proper course would have been for his creditors to have reduced *64
their debts to judgment, sold the land, and to have bought the same if it did not bring its worth, taken the sheriff's deed, and brought their action of ejectment. But, as no sale could be made upon execution after the death of Wiley Carter, the creditors' only remedy was through the administrator. It was his duty to proceed, under sec. 1436 of The Code, to reduce the property fraudulently conveyed by his intestate to assets to pay the debts of his intestate; and, if he did not and would not, the creditors had the right to proceed against him and compel him to do so. But he had to do this in a special proceeding before the clerk, who had the original and exclusive jurisdiction of the matter. Stancill v. Gay,
Error. Dismissed. *65
(96)
