Wintz v. Webb, 14 N.C. 27, 3 Dev. 27 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 27, 3 Dev. 27

Jeremiah Wintz adm'r. of John Wintz v. Robert Webb.

file sci. ftt. given by the act of 1806 (Rev. c. 700) to secure creditors against fraudulent conveyances by debtors, is dependent 'upon the original action of the creditor, and to sustain it, the first judgment must be in force.

This was a scire facéis under the act of 1806 (lien. <:. TOO) whereby it ivas suggested, “ that Joseph fVier, <( against whom John ff’inlz, deceased, had, in his lifetime, obtained a judgment for, &c. hath no visible property on which an execution can be levied, to sa- •’ tisfy the same, and that he (the plaintiff) hath good *e reason to believe that the said Joseph Wier hath Irau- “• dulently conveyed his property to a certain Robert Webb (the defendant) to avoid the payment of his just i; debts, and that the said Robert PVebb conceals the same, •*' or procures the same to he concealed, so that it cannot be levied on, to satisfy the said judgment.” The writ *c then commanded “ Robert Webb to he and appear, &c, to show cause, why execution shall notissue against •£ such property so concealed in his hands, to satisfy the ■” judgment aforesaid.”

The- defendant denied, upon affidavit, having any of the goods ox* estate of Joseph Wier in his possession, under any conveyance made by the latter to defraud his creditors. Issue was taken by the plaintiff, and the jury, under the charge of his Honor Judge MaNgum, found, 44 that the defendant did claim title.to, and did hold and 44 seci’eto the property of Joseph Wier, and held and used 44 it to avoid or delay the payment of the just debts of 44 the said Joseph, which said property was of the value 44 of $900.” Whereupon judgment was entered in favor of the plaintiff, for the amount of his original debt and costs ; and the defendant appealed. Many points were made on the tiial below, which it is unnecessary to notice. The case stated, that pending the scire facias, •Joseph Wier was executed for a capital felony,, (vide ante, lvol. p 363) and-that no administration had heén taken ■on Ills estate. ■

No counsel appeared for the defendant, and the case was submitted without argument, by Wtnslon, for the .plaintiff.

BrFMif, Judge.'

No error, to the prejudice of the appellant, is perceived in the opinions of the judge of the Superior'Court, either upon the questions of evidence, or the instructions to the j ¡ary. Werethere nothing more in the case, the judgment would therefore be affirmed. -But the case states other facts, which the Court deems fatal to this proceeding.

It is a scire facias under the act of 1806 (Jlev. c. TOO) That, in its nature, is not an original, hut a derivative writ, dependent upon the continuing existence and obligation of the-record, to enforce which it issues. This statute, when giving it in the cases provided for in it, does not change or pervert its uses. The. act declares, that upon the plaintiff’s affidavit, that the defendant hath no visible property to satisfy Ms judgment, and suggésting'tliat he hath fraudulently conveyed it, to avoid or delay the payment of his just debts, or that" some other person is in possession of the property, and con - ceals it, tbe court, in which tbe judgment was rendered, may upon such judgment issue a scifa. to such person. If it be acknowledged or found, that property is held or claimed by such person, the court shall and may order “ the same to he delivered up, or made subject to the judg- “ merit of the plaintiff” If the effects be money, or have been used, wasted or destroyed ; then there is to be 6‘judgment for the plaintiff against suck party” for the amount or value, to be ascertained by a jury.

aljatés an 01.¡g¡! nal suit, abates ¡tiS a° interplea be-tiff anefa garni-shoe is abated by defendant in the attachment,

„In a »'•/«• un-tilG 8.ct 01 1806,suggesting a fraudulent con-veyancc, & concealment of the tfhas^ecn wasted or used, .upon a verdict-ibi- the plaintiff, a personal judg-defendant is or-roneous.

To warrant the sci.fa. it seems certain, that the first judgment must be in existence, and in full force. The sci. fa. is to he issued “ upon any judgment.” But what renders it clear is, that in case the property be specific, and remaining in specie, there is to be no judgment for the debt, nor for tbe .value of the properly, but that it be delivered up, and made subject to the judgment. The judgment must then be in a state to warrant execution on it •, for without that, the property cannot be made subject to it. Here, the case states, that Hier, the original defendant, died in May, 1828, pending this suit upon scire facias-, and that no administration hath ever been taken on his estate. And I'Hntx,, the original plaintiff, Avas also dead, and his administrator liad not revived the judgment. The judgment was therefore dormant, when this case was tried below. No order for the delivery of the property could he effectual $ and therefore no such order could be properly made. . It is ana-logons to tbe death of the defendant in original attachment, after a collateral issue joined between the plaintiff and garnishee. Both proceedings aro dependent upon those original ones, out of which they have grown. The death of the party, or any other matter, Avhich is destructive to the principal suit, arrests the progress of that which is incident.

If this were not so in a casewhere the suggestion Avas, * '-jkj that the party had the defendant’s money, or had used, Avasted, or destroyed his goods, it nevertheless must be , rr« /»*-o *j i • /» t i ' HO m tins ca.se. The amdavit and sa.Ja. here make no such suggestion ; but are restricted to a fraudulent con-veyancc of the property to Wehh, and a concealment by Mm ; and the jury find, that lie held or used Wier's property ■ (without saying what in particular) to the value of $ 900. There was therefore no authority to give judgment against Webb, personally; but only the first judgment prescribed in the act. An absolute judgment against Webb for the plaintiff’s debt ivas given ; which,, *01' this reason, was erroneous, even if the judgment, against Wier had then remained in full force. But after the death of both the parties to the original suit, no further-step could -be taken, until that was revived by the administrator of the original plaintiff against the administrator of the original defendant. This proceeding is subsidiary to the first judgment, and died with it. The whole had abated.

Per Curiam. — Judgment be versed-