14 N.C. 221 | N.C. | 1831
His Honor, thinking the action could not be sustained upon these facts, nonsuited the plaintiff, who appealed. Were this a case where the defendant had made himself liable to actions as executor of his own wrong, by intermeddling with the goods of the dead man, for which he would have been subject to the rightful administrator when appointed, he does not by afterwards obtaining administration purge the wrong he committed before its grant, so as to prevent his being sued as executor. The (222) administration purges the wrong so as to confer on him the rights of a lawful administrator and to enable him to retain, but he is still liable to creditors if they elect to consider him an executor, and whether he or another administers the assets the principle is the same. If this was not the rule in cases where the wrongdoer is liable to the rightful administrator, yet in the present case it must be so from necessity. The wrongful act complained of is the taking by the defendant and holding in his possession, under a fraudulent conveyance from a dead man, two negro slaves. For this act he is not responsible, either to an executor or an administrator. The conveyance bound the dead man, and it binds them also. But it does not bind the dead man's creditors. It is void as to them. The law has therefore wisely provided that he who takes or has in his possession, under a fraudulent conveyance from the dead man, any of his goods, becomes thereby an executor of his own wrong. This is the case whether there be an executor or not, and whether the taking be before or after administration granted, contrary to the rule in cases of mere intermeddling. For the general rule is that where there is an executor, or after administration granted, an intermeddling with the goods of the deceased will not make one an executor of his own wrong, because the trespasser shall answer to the executor or administrator, and not to creditors; and it is because he is answerable to the executor or administrator for those acts that he is not answerable to creditors. The reason and policy of the rule are obvious. But even where there is an *190 executor or administrator, and the acts are of that nature, that they cannot obtain satisfaction for them, as in the present case the fraudulent grantee, being a privileged intermeddler, shall be liable to creditors as executor de son tort. The law would be inconsistent with itself if, after giving the right to creditors, it afforded no remedy to them. Upon either principle, therefore, this action can be sustained.
PER CURIAM. Judgment reversed.
Cited: Burton v. Farinholt,
(223)
