36 N.C. 190 | N.C. | 1840
It appears upon the pleadings that the plaintiff Brown gave to the plaintiff Campbell his bond with surety for the amount of the debt of Long, one of the defendants, to *153 Campbell, for which Brown was Long's surety; and that thereupon Campbell assigned the judgment at law to the plaintiff Cowan, in trust for Brown. It is admitted by the defendants who have answered that Josiah Huie and Robert Huie were respectively indebted to Long by bonds in the sums mentioned in the bill, and that he, Long, endorsed the bonds to the defendants Hardie and Hargrove, in trust for himself and to enable them to collect the debts for his benefit. It is also admitted by them that the defendant Long has no visible or tangible property. But Long states in his answer, and such is the fact, that at the filing of the bill both the judgment obtained by Campbell and that obtained by Brown against Long were dormant; and although, pending this suit, the latter has been revived, Campbell's judgment is still dormant, and for these reasons he insists that there can be no relief here in respect to either of the judgments.
An order was made by consent in the Court of Equity of Rowan County that the master in that court should collect the moneys due on the bonds of the Huies, and hold the same subject to the decree of the court, and the cause was set for hearing and sent to this Court. (192)
But a single question arising in the present state of this case, which is whether the plaintiffs are precluded from the relief to which they would otherwise be entitled, because the judgments at law were dormant when the bill was filed, and one of them is yet so? Upon the consideration of it our opinion is against the objection made by the defendants.
We agree that the creditor must show himself to be so by judgment, for it is only after he has established his debt at law that he can claim the interposition of this Court to aid him, either by making his execution at law effectual or by giving him relief by decree in this Court in the nature of an execution. Rambaut v. Mayfield,
Then, with regard to issuing an execution on a judgment before coming into this Court, we agree likewise that it is generally proper and necessary, and that for several reasons. Where the object of coming into a court of equity is to ascertain encumbrances, to set aside conveyances as fraudulent, or otherwise clear the title of property which the creditor alleges is liable to be sold under execution at law, the suing out of an execution before filing the bill is indispensable to create a specific (193) lien on the particular property in respect to which relief is sought. But if the property out of which the satisfaction is sought be an equitable right merely or any other right, which cannot be reached by a legal execution, it is vain to issue the execution so far as respects the creation of a lien, for if issued it could have no such effect. It is, however, ordinarily proper, even in such a case as the last, to take out an execution; but for a different purpose, namely, to establish, by demanding property from the debtor and a return of nullabona, that satisfaction cannot be had at law out of any other effects of the debtor, and for that reason that the creditor was compelled to come into a court of equity for satisfaction out of such of the debtor's effects as that court only can reach. A court of equity never interposes in behalf of a mere legal demand until the creditor has tried the legal remedies and found them ineffectual. Then and not before this Court lends its extraordinary aid. McKay v. Williams,
We therefore think the defense must fail, and declare the plaintiff Brown entitled to satisfaction of the principal money *155 and interest and the costs due on the two judgments, out of the moneys arising from the bonds of the Huies; and it must be referred to the master to inquire and report the sums due in respect thereof; and, also, the master of the Court of Equity for Rowan County must be directed to pay into this Court the moneys arising from the said bonds of Josiah Huie and Robert Huie, as he may collect the same, to be applied as far as necessary to the satisfaction of the plaintiff's said (194) demands and the costs of this suit.
PER CURIAM. Decree accordingly.
Cited: Frost v. Reynolds,