57 N.C. 27 | N.C. | 1858
The bill charges that Benjamin J. Spruill was indebted to the plaintiffs, in the sum of $258,43, for which they sued and recovered a judgment in the County Court of Washington; that execution issued on said judgment, and was returned unsatisfied, except as to a small amount, and that the said Spruill *28 is insolvent; that the wife of the defendant Spruill, the defendant Mehetable, by the death of a sister, Harriet Ann Fesenden, intestate, became entitled to one-third part of the personal estate of the said Harriet Ann, and that these defendants, with the other distributees, had filed a petition in the County Court of Washington, and had obtained a decree for the sale of certain slaves for a partition among them; that plaintiffs had had the husband's interest in such slaves levied on; that with a view to defraud the plaintiffs, the said B. J. Spruill had conveyed this distributive share to the defendant Charles Latham, by deed, bearing date, c., a copy of which is annexed, and prayed to be taken as a part of the bill. The conveyance referred to is a deed of trust, to secure certain creditors therein mentioned, in proper form and duly proven.
The bill is for an injunction to stop the sale under the decree in the county court, and for a decree to have their execution satisfied out of this distributive share.
The defendants demurred. Joinder in demurrer, and the cause was set down for argument, and sent to this Court. It is settled that a husband has a right to assign a legacy, or distributive share, due to his wife, for the purpose of paying his debts, and if the assignee can reduce it into possession during the life of the husband, the surviving wife cannot recover it; Barnes v. Pearson, 6 Ire. Eq. Rep. 482; Arrington v. Yarbrough, 1 Jones' Eq. Rep. 72. The interest of the husband, in such rights of his wife, cannot be seized under an execution at law, against him, nor will the execution have any lien upon it, either at law or in equity. So, that until a bill be filed, the husband may make a bona fide assignment of it for the payment of what debts he chooses; Harrison v. Battle, 1 Dev. Eq. Rep. 537. The counsel for the plaintiffs do not deny these propositions, but they insist that the bill charges that the assignment, in trust, to Latham, *29 was fraudulent; that the charge is admitted by the demurrer; and that consequently, the assignment cannot stand in the way of their right to relief.
The reply made by the defendants' counsel is, that there is no sufficient charge, in the bill, of fraud in the execution of the deed in trust, under which they claim, to prevent them from taking benefit under it; that on the contrary, the deed in trust is referred to and made a part of the bill; that it purports to secure the payment of debts, the bonafides of which is not impeached; that the debtor had a right to make it, and that, therefore, the allegation of the bill, that the deed was made "with a view to defraud" the plaintiffs, is the mere assertion of a legal conclusion, which is not sustained by the facts therein set forth. This reply of defendants is, in our opinion, conclusive against the plaintiffs. It is true, that the bill does not contain any averment of facts, to show that the deed in trust was fraudulent. It is not pretended that there was any fraud in the factum of the deed, not is there any intimation that the debts therein mentioned, were not justly due from the grantor; and if he owed them, he certainly had a right to secure them in preference to that which he owed to the plaintiffs.
The general allegation, then, of a fraudulent intent, is not justified by the fact stated in the bill, and of course, is not helped by the demurrer, which admits facts only, and not the legal conclusions, which the bill may deduce from them. The demurrer must be sustained, and the bill dismissed with costs.
PER CURIAM. Decree accordingly.
