40 N.C. 86 | N.C. | 1847
The facts alleged in the bill and the grounds of the demurrer are set forth in the opinion of the Court. The Court thinks the demurrer ought not to have been sustained. The bill, it is true, is very badly drawn, stuffed with epithets not pertinent, and irrelevant matter, and wanting in directness and precision in the material allegations. The vagueness of the charges, not stating specifically the grounds on which each of the defendants is to be charged, may perhaps prevent the plaintiffs from getting as satisfactory answers as might be desired; and probably the plaintiffs may find themselves under the necessity of amending the bill, in order effectually to obtain all the relief they ought to have. But even at present we cannot say that the plaintiffs have not entitled (87) themselves to some relief.
There is no doubt that a creditor may follow the assets into the hands of legatees, and of other persons claiming as volunteers or fraudulent alienees of an unfaithful and insolvent executor. Bills for that purpose are not infrequent. The creditor has an evident equity to satisfaction out of the testator's estate, in preference to the volunteers; and if he cannot obtain his debt from the executor, he is clearly entitled to pursue the fund until it has changed its character by a sale to some person on an honest contract. That seems to have been the purpose of this bill, though darkly expressed. But reading the bill carefully, and throwing off what is irrelevant, and bringing together what is material, that can, we believe, be made out of the substance of the bill, we find these statements in it, among many other idle ones: That pending an action at law brought by the plaintiff against the defendant Patrick B. Threadgill as executor of Thomas Threadgill, Sr., he, the executor, and "the other defendants," with the intent to defeat the plaintiffs' judgment, if recovered, procured an order of the county court for a sale of the negroes of the testator, upwards of twenty in number, under the false pretense that it was necessary for the purpose of paying debts and distribution; and that Thomas Threadgill, Jr., Gideon B. Threadgill, and George Allen (three of the defendants) "having taken the control and charge of the executor, who was an intemperate and weak man, contrived to effect a sale of several of said slaves, a few of which were bought by other persons, whose bonds were *60
transferred before due by the executor by the aid of the said three defendants, in order to realize the proceeds before the plaintiffs could get judgment, were by mere sham and fraud, through the forms of a sale, public or private, transferred over into the possession of the (88) said Thomas, Jr., and Gideon B.; that there were still eighteen slaves belonging to the estate in the hands of the executor "or the other defendants," not disposed of, and "the defendants" conceived the idea of carrying them out of the State in order to hinder the plaintiffs of their recovery, and that "the defendants all joined in collecting those eighteen (who are named) and in confining them so that they might be safely carried away; and then that the two defendants, Thomas Threadgill, Jr., and Wilson Allen, acting under the directions of the other defendants (who are Patrick B. Threadgill, the executor, Gideon B. Threadgill, George Allen, and Joseph W. Allen), carried them out of this State, before the plaintiff obtained judgment." The bill further charges, "that the sales by the executor, where any of the defendants" purchased, were sham sales; and that if any bonds were given for the purchase money, the same were never paid, and in fact nothing was paid to the executor by either said Thomas, Jr., or Gideon B., or any other of the defendants for any of the slaves, which they pretended to purchase; and that "all the said sales, or pretended sales, to the defendants or any of them were without consideration and fraudulent." It is further stated that the plaintiffs finally obtained judgment at law for $4,950.83, and sued out a fieri facias de bonistestatoris, on which a sum was levied by the sale of some few articles, and that no other property could be found, and the residue of the debt remains unsatisfied; and that the executor is insolvent and entirely without property of his own. Here, then, is a distinct allegation that there was a pretended and fraudulent sale of several of the negroes to two of the defendants, Thomas and Gideon B. Threadgill, which must be understood as vesting the apparent title in them; and so far, if that be true, the bill is, at all events, a proper one. The charge is not so distinct of an actual sale and conveyance of slaves to the other defendants, and it is only to be collected by inference that it was (89) intended to be so alleged. It is unnecessary, however, to say whether the bill could be sustained upon such vague and inferential allegations by themselves, nor how far it might be supported upon the removal of the other eighteen slaves out of the State, or upon the fraudulent agency of three of the defendants in effecting the sales under the order of court and receiving the money that was paid thereon; because the demurrer must be overruled, at all events, and those questions will be better disposed of upon the hearing, when, probably, all the facts will be before the court upon the answers and proofs. We say the demurrer must be *61
overruled at all events, because enough appears to entitle the plaintiff, if true, to a decree as to the "several negroes" conveyed or sold to Thomas and Gideon B. Threadgill; and therefore this joint demurrer of the defendants to the whole bill (except the formal charges of combination) will not lie. For it is the general rule that a demurrer must be good throughout, and that if it covers too much it must be overruled in toto.Thompson v. Newlin,
What has been said disposes of the demurrer, and it is not necessary that more should be said. Perhaps, however, it may be proper to notice the other points. (90)
The bill is not multifarious; for the plaintiffs are pursuing one demand against one fund, the assets of their debtor. Though not necessarily, yet the defendants were properly all made defendants, as having different parts of that fund, either in negroes or their proceeds, in their hands, or being liable for their value, and so bound at least to contribution.
It is not necessary to scan the bill to see whether it imputes to the defendants an indictable conspiracy; for, if it do, it furnishes no ground of demurrer to the relief prayed, though it might justify a demurrer to so much of the bill as seeks a discovery of the facts constituting that crime. It would be a strange reason for dismissing a bill that the plaintiff's equity arose out of a transaction for which the defendants were also liablecriminaliter for a misdemeanor.
It is not the ground of the plaintiff's equity at all that he has a specific lien on the slaves. If such a lien had attached, it could be enforced by law, and the plaintiffs need not have come here. The equity is that they are entitled to have satisfaction from the negroes, or their proceeds in the hands of the defendants, because there is no other property of the testator accessible, and the executor is not only insolvent, but without any property. *62
Barnawell's wife appears, on the face of the bill, to be a plaintiff, having been made so by amendment allowed. The bill states that the plaintiff before judgment instituted some proceeding for a ne exeat, etc.; but it does not appear in the bill to be still pending, and if it did, this case is essentially different by reason of the subsequent judgment and execution, and other occurrences.
The decree was, therefore, erroneous, and must be reversed and the demurrer be overruled. We cannot say, however, that the defendants were so much to blame for taking the opinion of the court upon (91) such a bill as the present as to entitle the plaintiffs to costs on overruling the demurrer. But, on the other hand, most of the causes of demurrer are so captious and obviously unfounded as to induce a pretty strong suspicion that it was put in much for delay and vexation. Therefore, it seems best to give costs to neither side, as far as the case has as yet gone.
PER CURIAM. Ordered accordingly.
Cited: Oliviera v. University,
