21 N.C. 389 | N.C. | 1836
The case was argued several terms ago by W. H. Haywood for the plaintiff, Badger for the defendant, Hill and Devereux for the trustees. Were it necessary to decide on the fact of notice, we should probably have little difficulty in determining it against the defendant. While he denies, by his answer, knowledge of the bond, he states several circumstances, tending to show information respecting the claim of the plaintiff, as should have put him upon his guard; and, according to the law of a court of equity, is equivalent to notice. But, as in our view of the case the fact of notice is an immaterial one, we forbear from determining it.
By the marriage, Freeman acquired a legal title to the slave in question. This legal title was, by virtue of the bond, charged specifically (391) with the trusts therein declared. An agreement for a mortgage is, in equity, a mortgage, and a lien upon the land agreed to be mortgaged, against the creditors of the mortgagor. Burnv. Burn, 3 Vesey, 573. An equitable mortgagee has a specific lien, even against the prerogative of the Crown, in respect of a debt accruing to the king subsequently. Casberd v. Ward, 6 Price, 411; Picton v. Philpot, 12 Price, 197. One covenants before marriage to settle certain lands on his wife for life, and afterwards devises these lands for the payment of his debts; this covenant is a specific lien on those lands against the creditors. But if he had covenanted to settle land of a certain value, without mentioning any in certain, then there would have been no specific lien, and the wife must have come in as a creditor in general. Frenault v.Dedin, 1 P. Wms., 429. This specific lien was good against the creditors of Freeman. There is no allegation or pretense that the equitable settlement was not bona fide. It was a provision made for the intended wife and her children, only to the extent of her then property. Our act of 1785 (Rev., ch. 238, sec. 2) permits a marriage settlement, or other marriage contract to avail against creditors, when a greater value is not secured to the wife, than the portion *303 received with her, and the net estate of the husband at the time of his marriage, exclusive of his debts.
The bond was registered within the time prescribed by the first section of this act for the registration of marriage settlements and other marriage contracts binding the estates of husbands. This was a necessary ceremony to give validity to this equitable settlement against the creditors of Freeman.
From the preamble of the act, and from the language of its several enactments, it is obvious that it is the creditors of the husband whom it designs to protect against deception and injury.
This equitable settlement, being unimpeached for fraud, not exceeding the amount permitted to be thus settled, and having the notoriety prescribed by law, and being therefore good and valid against the husband's creditors, with or without actual notice, must be good and valid against those who succeed simply to the rights of those (392) creditors, with or without notice. A sale under a fieri facias is the prescribed mode in which the law carries into effect its seizure of the property of a debtor, for the satisfaction of the demand of his creditors. The mandate gives no authority to the officer to seize any other estate than the estate of the debtor, and the vendee under the execution acquires no other estate than the law directed to be seized for this purpose. The vendee represents the judgment creditor, but is not regarded a purchaser from the proprietor. The well-known doctrine of equity, which refuses to enforce a trust against a purchaser for valuable consideration, and without notice, applies only in cases of sales between parties, not to vendees under executions. If the bond in this case had not been registered, as no notice would have made it binding upon the creditor, none would have given it validity against the vendee at the sale under the creditor's execution. Registered or not registered, it would have been enforced against a purchaser (from the husband) with notice of the lien. It would be absurd if all could be prohibited from buying at an execution sale what a creditor had a right by execution to seize and sell; and scarcely less so if what could not be rightfully seized by execution might nevertheless be rightfully bought at a sale under it. Cases may occur in which a vendee at an execution sale may be protected or relieved against valid liens upon the property because of fraud in the encumbrancer concealing his demand. But these belong to a different head of equity and have no application to the subject now under consideration.
It is the opinion of the court that the plaintiffs are entitled to a decree for the negro, and for his hire and profits since the death of Freeman, and to costs against the defendant Hill. Under the circumstances of this case the trustees must pay their own costs. *304
Cited: Dudley v. Cole, post, 436; Polk v. Gallant,
(393)
