Williford v. Conner, 12 N.C. 379, 1 Dev. 379 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 379, 1 Dev. 379

Milly Williford v. Edward Conner.

From Robeson.

A creditor cannot seize property fraudulently conveyed, unless by virtue of liis execution.

Trover for a colt, and on the trial, the Plaintiff proved a sale and delivery of the property to her by one Barnes, and a subsequent conversion by. the Defendant. ¶1}^ Defendant produced a judgment and execution therc-on against Barnes and himself in favor of one Ward, the date of which was prior to the sale to the Plaintiff, and w}jeil (¡,ftt was made, the execution was in force and might have been levied on the property. There were circumstances in proof, tending to impeach the sale to the Plaintiff as fraudulent, but fhere was no evidence of the mariner in which the property came into the Defendant’s hands.

His honor Judge Norwood, informed the Jury, that if the sale by Barnes to the Defendant was fraudulent and void as to creditors, yet it was valid between the parties to it, and that a creditor could not avoid the sale by taking possession of the property fraudulently conveyed, but must levy his execution upon it, and that any other taking, however fraudulent the sale might be, rendered the creditor a trespasser and subjected him to this action.

The Jury returned a verdict for (he Plaintiff, and the Defendant appealed.

No Counsel appeared in this Court for either party.

Hah,, Judge.

The charge of the Judge in this case was certainly correct. The statutes against fraudulent conveyances in favor of creditors, can only he carried into effect by due process of law. If the sale of the colt in this case, was fraudulent as to creditors, Ward’s execution should have been levied upon it, in the hands of the Plaintiff. But the Defendant had no right to be a judge in his own cause, and seize upon it on that account. The sale between the parties was good and valid, and the Defendant in taking the property, acted as a wrongdoer.

Per Curiam. — Judgment affirmed.