Hubbard v. Winborne, 20 N.C. 137, 3 Dev. & Bat. 137 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 137, 3 Dev. & Bat. 137

JACOB HUBBARD v. WALTER A. WINBORNE.

Dec. 1838.

The debtor may act aa agent for hia trustee in aelling or exchanging articles of the trust property, and an exchange made by the debtor without any precedent authority from the trustee, but subsequently ratified by him, will vest the title of the article taken in exchange, in the trustee, as against the debtor or those claiming as his creditors, if not from the exchange itself, at least from its ratification.

This was an action of tkover, brought to recover the value of a mare. Plea the general issue, upon which issue was joined, and the cause tried at Guilford on the last circuit before his Honor Judge Pearson..

The facts were agreed on, and it was.also agreed that if his Honor should think that upon the facts the plaintiff was entitled to recover, the jury should return a verdict in his favor for the value of the mare; otherwise the verdict was to be rendered for the defendant. The facts as agreed on were these : One Bryant,, being much indebted, made a deed to the plaintiff, conveying among other things an old gray horse, in trust to sell and pay certain debts therein mentioned. This deed in trust was duly registered; the property was left in the possession of Bryant until the day of sale. Soon after the registration of the deed, Bryant exchanged the gray horse for a brown mare, and brought the mare home, and immediately informed the plaintiff of the exchange, and he, thinking it was a good swap, ratified and agreed to it. The defendant a few days afterwards levied on the mare under executions which he had in his hands as an officer against Bryant, and sold her at public sale. Before the levy, the defendant was notified of all the above facts ; and the sale was forbid by the plaintiff, who claimed the mare in place of the horse mentioned in the deed of trust. The question was whether the plaintiff could recover the value of the brown mare. His'Honor being of opinion that he could, a verdict for the plaintiff was returned by the jury, and the defendant appealed.

W. A. Graham, for the defendant.

J. T. Morehead, for the plaintiff. .

Ruffin, Chief Justice.

The Court does not perceive any objection to the plaintiff’s recovery. The defendant ira-pntes no fraudulent purpose to the deed, to the possession remaining with the debtor, nor to the ratification of the exchange of horses by the trustee. Supposing all those acts done with an honest intent— and there is no evidence or suggestion to the contrary — the title of the horse sued for, vested in the plaintiff immediately upon his assent to the swap. As trustee he may incur a responsibility to the creditors by thus dealing with the trust property: but that cannot in a Court of law effect his legal right to sell or otherwise dispose of the effects conveyed to him. It seems to be supposed, however, that it amounts to an evasion of the statutes requiring the registry of deeds of trust, since the deed will embrace one article and the debtor will be found in possession ot another. How far that may go as an argument °* f'rau(;i from the deception on creditors to which it tends, or which was actually practised on the execution creditor . . . . . “ ‘ m this case, it is not for us now to say. Our province at Present is simply to inquire, whether a trustee be not in any case Perm’tted bona fide to constitute the debtor his agent to sell or exchange an article of the trust property. That he may> we cannot doubt. If the authority precede the dispo-s’^on! it's clear he may ; for then the property never vests even apparently, or for a moment in the debtor; but the contract is made in the name, and. on the behalf of the trus-to whom the properly passes directly from the former owner- case before us, the result is the same. The ratification is not merely pretended, but is stated as a real honest one ; immediately following the exchange, bene-ficja] t0 the trust fund, and before the levy of any execution . . J or other hen, or interest gamed by another creditor. The assent of the plaintiff thus given, it would seem, as against the ageni or those claiming as his creditors, must have vested the property in the plaintiff, if not from the exchange itself, from its ratification ; and the last is sufficient for the plaintiff! as ffmt preceded the lien of the execution under which the defendant alleges a justification, J

To permit the debtor who repossession after con-veytng his properly in exchange tbeCtmstf property by thiTas-trustee is* not such of the sta" If°ff trust, as’ to from ac-quirmg the legal title ole taken11" change How far it arfarfu-33 fraud from the deception on creditors to which it tends. Qu 1

Per Curiam. Judgment affirmed, °