Haines v. Cowles, 16 N.C. 420, 1 Dev. Eq. 420 (1830)

June 1830 · Supreme Court of North Carolina

16 N.C. 420, 1 Dev. Eq. 420

Thomas Haines v. Josiah Cowles and Ephraim Hough,

From Surry.

One who has conveyed his property, in trust, to secure his own debí, and has .ssented to a sale of it upon disadvantageous terms, cannot,, in Equity, obtain a re-sale of it, although it was purchased hy tin. creditor whose debt was secured.

But other creditors, who have been injured b v the sale, will be aided

The case made by the bill, answers and proofs, was., that the Plaintiff being indebted to the Defendant, Cowles, in the sum of §590, and to other persons to the amount of §400, made a conveyance of all his property to the Defendant, Hough, upon trust, to secure the debt due the Defendant, Cowles, with a power of sale, in case of a default of payment by the, Plaintiff — that after a default, the Defendant, Hough, by the directions of Cowles., and wilh the consent of ihe Plaintiff, sold the property assured in trust, for cash, at a ruinous sacrifice, insomuch, that although amply sufficient to discharge all the debts of the Plaintiff, it was purchased by the D.-f nd-ant Cowles, for a sum less than fits debt. And that one (prasa rr*--,h.'. - '.V,t ivL :nt>ÍL•>-/( yíten-'ip'b ■ic* if «b w* »< 111 . í u, M¡e Him., ;¡i bid for it (he amo»’;',1, oí' ¡¡si ■ ■:' v-mí ■>»•<! of 4¡«* ¡N-femlant, Cowles. The pry „ <y. d,c biü was, that IV property might be ra-sultl, ítnder She supcrimcndance f ;!:,e Master, and the Plaintiff declared to he entitled : í i ü» surplus, over and above the debt of the Defendant “'V/.'ies.

■ overease, for the Plaintiff.

.• sbn, for the Defendants.

Hall, Judge.

— If does not occur to me, that there is vu ground on which the Plaintiff can be relieved in this '“.Vi t

i ¡lie property, which was sold under the deed of trust ti; Conveyed to the trustee by him for that purpose. ,i Xu-iois no evidence in the case that supports the charge, Cuy: the sales of the property were fraudulently con-ids ied, to the Plaintiff’s prejudice. It was sold for ■vds., agreeably to the terms of the deed of trust, to ¡ di the Plaintiff had given his assent, and whether it redd for much or little, there can be no remedy for him. •:.f he and Cowles had combined to defraud Haines’ credi-fw and on that account the property had been sacri-4-v4, be, being a partieeps criminis, could have no re me * ly, although the creditors defrauded would have a fair deis?ii to one.

Piie Plaintiff probably had it in his power to pursue a morirse more favorable 10 both himself and creditors; 4s ’t <<>, to have the property sold on a credit. Where a ti* hu t" conveyvS his estate to one creditor by deed ot trust, tsi ey i re him only, and the property is stipulated to be »■ cash, and not on a credit, in which other credi >v: e likely to suffer a loss, I think, in such a case, of Equity would lend its aid to prevent sucli in-j k uk a„ But this is not that case. No creditor has ap-a yd ildr relief.

If Allison h¡\d_paid off Cowles’ dolt, ov said it Lad rioi,; been accepted, he might ha'^^ppnrrt^ mcdy ag.iirilc tSfe property iu Cowles’ (Jee’d "'of trust.» Mlison only proposed to make a bid for the property to the amount of Cowles’ and his own debt $ and speculated himseJf into whatever balance might have remained of the property afrer those debts were satisfied, without, any regard to the interest of other creditors. But thesoi remarks are altogether inapplicable to the prayer of th c Plaintiff for relief.

Per Curiam.

— Let the bill be dismissed with coals,: