Barnard v. Gregory, 14 N.C. 223, 3 Dev. 223 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 223, 3 Dev. 223

Willoughby D. Barnard v. Arthur Gregory Ex'r. of Jonathan Roberts.

'■One who sets up a claim to goods of an intestate, under a fraudulent conveyance, and thereby injures the sale of them, does not render himself an executor de soil tori.

Debt upon a single bond ; and on the trial before his Honor Judge Martin, at Camden, on the last circuit, the only question was upon the plea of munques executor. To make the defendant an executor of his own wrong) the plaintiff proved that the Sheriff having an execution, the testé of which overreached the death of Roberts, levied it upon a negro in his possession at his death ; that the defendant at the sale produced an unregistered bill of sale fob the same negro and claimed title ; that the slave¿ in consequence of this claim, went at a small price, and that the defendant paid the purchaser an advance upon his hid, and took a bill of sale from the sheriff to himself»

The plaintiff then offered evidence, tending to prove tllat the defendant’s bill of sale from Roberts was fraudulent and contended in that case, that the defendant by forbidding the sale, and causing the negro to sell for less than its value, liad,made himself an executor of his own wrong. But his Honor being of a different opinion, directed the jury to find for the defendant, and the plaintiff appealed.

Kimmj, for the plaintiff.

Iredell, 'for the defendant.

Haee» Judge.

‘An executor of his own wrong is defined to he a person, who without any authority inter-meddles with the estate of the deceased, and does such acts as properly belong to the officé of an executor or administrator. (Went Off. of Ex. 171). And by stat. 43 Eliz. ch. 8, he is declared to be an executor of his own wrong, who holds any goods of, or who owes any debt to the intestate, for which he holds a fraudulent release or discharge, and without such valuable consideration as shall amount to the value of the same goods or -debts or thereabouts.

But I am not aware that it has ever been adjudged, that a person was an executor of his own wrong, who has not intermeddled with the estate of the deceased, or who does not hold any ofhis estate in his hands, but who only sets up a claim against the estate, although that claim may not be a valid, but in truth a fraudulent one. This may have been the defendant’s case, but it has not been proved. It is not stated, although probably the fact was so, that Roberts’ estate was insolvent. Nor has it been made to appear, that the defendant’s unregistered bill of sale was fraudulent. To be sure it appears that he had not all confidence in it, when he purchased the title of the person who bid off the negro. Be that as it may, I think the judge did not err when he decided, that although the bill of sale was fraudulent, and although the defendant forbid the sale, claiming under it, and thereby caused the property to sell for a loss price, yet that did not constitute him an'executor of his own wrong.

¡Per Curiam — Judgment aeeirmed.