38 N.C. 568 | N.C. | 1845
The following case appears from the pleadings:
The bill is entitled, "the bill of complaint of Nathaniel J. King, Charles R. Yancy, and John Blackwood, to the use of Hurt, Patterson and Wills, merchants in the town of Petersburg, in Virginia, against Zachariah Trice, Richard Henslee and James C. Turrentine." It begins, however, in the stating part of it thus: "Humbly complaining showeth unto your Honor, that your orators, Hurt, Patterson and Wills, became the owners or assignees of a claim on the defendant, Zachariah Trice, for which they gave a valuable consideration, and on which a judgment was rendered against the said Trice in the Superior Court of Orange County, at September Term, 1839, for the sum of $1,132.19 cents, with interest until paid, and costs." The bill then states, that a fieri facias issued on the judgment, which the sheriff of Orange returned to March Term, 1840, "nothing found"; and that thereupon a capias ad satisfaciendum issued, returnable to September Term, 1840, on which Zachariah Trice was arrested by the sheriff, and that he gave bond for his appearance to take the benefit of the act for the relief of insolvent debtors, filed a schedule and (569) gave notice to the plaintiffs; and that the schedule included nothing but his interest or resulting trust, "in certain property which he alleged he had previously conveyed to James C. Turrentine."
The bill then states, that, previous to rendering the judgment, Z. Trice executed to Richard Henslee a deed of trust for all his estate, real and personal, to secure the payment of debts to the amount of $21,000; and that the said deed was made by the said Trice to cover his property from the said execution and to defraud his creditors, as the conduct of the said Trice afterwards proved. For that the said Trice procured a sale to be made by Henslee under the deed of trust, at which the property ("which was very valuable, consisting of lands and negro slaves") was put up for sale and purchased by irresponsible persons for the use and benefit of the said Trice. The bill then further states, that after the ca. sa. had been served as aforesaid, and a few days before the return day thereof, the said Trice, on 3 September, 1840, executed a deed of trust to James C. Turrentine, then and at the filing of the bill on 18 September, 1842, the sheriff of Orange, "in which he conveyed most, if not all the property, which he had previously conveyed to Henslee and which the latter had pretended to sell under the deed of trust to him; thereby shewing conclusively that the *449 said deed to Henslee was fraudulent, and, therefore, null and void, and that your orators writ of fieri facias legally attached on the said property." The bill then states that the plaintiffs are advised that they are entitled to have it so declared by the Court and to have the said judgment satisfied out of the property; and accordingly the prayer is for a decree to that effect, and that Turrentine may be restrained from applying any part of the estate to the satisfaction of the debts mentioned in the deed of trust to the prejudice of the plaintiffs.
By an amended bill it is stated that at the sale made by Henslee (as mentioned in the original bill) Noah Trice became pretended purchaser of the Dillard plantation, lying on the road from Hillsboro to Raleigh, but really purchased with the money of (570) Zachariah Trice, and in trust for him. And that on 3 September, 1840, in order to complicate the title of his property and to defeat the plaintiffs, the said Zachariah executed a conveyance to Samuel Strayhorn for the Dillard plantation for the pretended consideration of $1,600, and procured said Henslee and Noah Trice to join in the same. The bill charges that, although the sum of $1,600 is mentioned as the consideration in the deed to Strayhorn, yet nothing was paid, and Strayhorn accepted the conveyance upon a secret trust of Z. Trice, or as a security for some small debt, which Z. Trice, owed him, or for which he was Z. Trice's security. And then it prays for a discovery from Noah Trice and Samuel Strayhorn, and for satisfaction out of this tract of land, and for general relief.
In respect to the place called the Dillard plantation, it is stated in the answers of Zachariah Trice and Noah Trice, that, at a sale made by Henslee, the said Noah, at the request of Zachariah, became the purchaser thereof at $1,600, paid by him to Henslee; but that he purchased in trust for Zachariah, who privately furnished the money. And those defendants and Strayhorn state that Zachariah Trice was the guardian of certain infants, and that Strayhorn was his surety, and that judgment was obtained on the guardian bond for about $984.83, and Strayhorn was compelled to pay on 29 February, 1840, the sum of $1,416.33, and afterwards the sum of $1,031.92, and $89.95, making in the whole the sum of $2,537.30, on the said judgment; and that the said plantation was sold to him by Zachariah Trice, bona fide, at the price of $1,600, in part payment of his said advances for Z. Trice, and that such price was the fair value of the land; and that he took the deed on 3 September, 1840, from Henslee and both the Trices, in order to have a good title from both the legal and equitable owners, *450 Strayhorn denies positively any trust between him and Z. Trice, or any fraudulent purpose to defeat any creditor of Z. Trice, and he says that his sole object was to obtain a payment from Trice and save himself, (571) as far as he could; and further, that except a small balance of about $80, which was found to be due from him to Z. Trice, upon a settlement of other accounts between them, the said land is the only payment he has received or can now expect to receive, as Trice has become hopelessly insolvent.
The defendant Turrentine answers that Z. Trice told him on 3 September, 1840, that he had executed to him as trustee a deed to secure the payment of his debts as therein mentioned; and requested him to accept the same and execute the trusts; but after considering the subject several days, he declined to act, and has never done so further than, at the request of the persons interested, that he joined in an assignment of the property to one Riley Vichers, as trustee in his place.
The Trices and Henslee admit that Z. Trice executed a deed of trust to Henslee for all or nearly all his property, as stated in the bill.
There is but little evidence in the case. It is confined to the liability of Strayhorn and his payments for Trice, and supports Strayhorn's answer almost literally. It is proved that he purchased the Dillard plantation at $1,600, and gave Z. Trice his acquittance for that sum in part of the money he had paid for him.
As against the defendant, Strayhorn, the bill may be dismissed upon the merits of his case, as stated in his answer and fully established by his proofs. Upon the question of the good faith of his purchase and the promise of a fair price, the Court must make a declaration in his favor: for the agreement as to the price of $1,600, in part of the debt to Strayhorn is proved, and there is no evidence to impeach it on the score of inadequacy. Admitting, then, the deed from Z. Trice to Henslee, and his sale to Noah Trice were fraudulent. yet Strayhorn is not to be affected thereby, as he was no party to those transactions and has the (572) conveyance of all three of those persons, made bona fide and on a valuable and adequate consideration. The prior fraud is purged as to him. King v. Cantrel,
But laying aside all the preceding considerations, there is one complete answer to the bill, which is common to all the defendants. It is this: the bill was filed for the purpose of obtaining satisfaction out of the debtor's property, while the *452 creditor was proceeding upon an execution executed upon the debtor's person. No such proceeding can be allowed, either at law or in equity. The taking the body in execution is prima facie a satisfaction of the debt. Although a doubt may be made upon that point, when the debtor is discharged from actual custody by giving an appearance bond under the insolvent debtors act, yet, it is clear that, while the proceeding is carried on under that act against the person, so as to compel him to pay the debt, or go to prison, if he be insolvent or do not take the regular steps to entitle him to swear out, the creditor can not also entitle himself to execution to create a lien on the legal property of the debtor. There can be no foundation for relief in the court of equity out of that property, or indeed, his equitable property. The law deems an execution against the person an adequate remedy, while it is subsisting, to all purposes. In this case the bill shows such an execution, and as far as appears, the proceedings on it are not concluded. Therefore there is no jurisdiction here, since at law the plaintiffs are actually prosecuting a plain and perfect remedy.
The case has been treated hitherto, as if the bill were otherwise well framed, than in stating a defective equity. But it is drawn with so little skill or so very carelessly, that if the plaintiff's equity, (574) as to its principle, had been ever so clear, the Court could not have relieved them for want of a proper statement of facts. It is not even certain who are the plaintiffs. King, Yancey and Blackwood are mentioned in the title of the bill as suing to the use of Hurt, Patetrson [Patterson] and Wills, but how they come to do so can not be conjectured, as the name of King, Yancey and Blackwood is no more heard of. Then who Hurt, Patterson and Wills are can not be told, for the Christian name of neither of them is given. Again they are said to be assignees of a claim on Z. Trice, on which a judgment was rendered; but what is the nature of the claim, whether a debt by bond or a demand of some other sort, or whether they be the legal or only the equitable assignees, or from whom they got the assignment, or in whose name the judgment was taken, in no manner appears. And besides those, the bill is radically defective in not stating and describing the property conveyed by the debtor, or of which the satisfaction is sought. Here the statement is, that Trice made a fraudulent conveyance to Henslee of valuable property, "consisting of land and negroes." And afterwards the Trices and Henslee conveyed the Dillard plantation to Strayhorn, the defendant, and "the other property" to Turrentine. It is true the bill states, that copies of the deeds the plaintiffs have *453 ready to produce, and they pray they may be considered parts of the bill. But they are not exhibited with the bill, and there is therefore nothing in the pleadings, from which the precise subjects of litigation can be ascertained. Indeed, if they had been exhibited, that would not dispense with a description of the subjects in the body of the bill, or a statement of so much of the contents of the instruments as may be necessary to establish the party's title. The purpose of annexing exhibits is not to enable the pleader to make the pleadings mere skeletons, not in themselves containing the facts and points in controversy, but to obtain an admission of their genuineness from the other side, and for greater certainty as to their contents and as aiding in the construction from the context. The Court, as is well known, seldom adverts to matters of (575) from, and, indeed, perhaps culpably, has been indulgent to very loose pleading in equity; and we very reluctantly make any observations on such points. But we feel constrained to animadvert on such very defective statements, as are found in these pleadings; and especially to let it be known that, in pleadings drawn hereafter, we shall expect so much of the deed or will, as constitutes the party's title, to be set forth in the body of his pleadings so that the title may be seen in the pleadings and not merely in the proofs.
The bill must be dismissed with costs; and in taxing them a Solicitor's fees must be included for each of the defendants, Strayhorn and Turrentine, and one for all of the other defendants together.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Wilson v. Land Co.,
(576)
