Clark v. Banner, 21 N.C. 608, 1 Dev. & Bat. Eq. 608 (1837)

Dec. 1837 · Supreme Court of North Carolina
21 N.C. 608, 1 Dev. & Bat. Eq. 608
SAMUEL CLARK v. CHARLES BANNER, et al.

SAMUEL CLARK v. CHARLES BANNER, et al.

A plaintiff who seeks the aid of a Court of Equity to obtain satisfaction of his judgment at law, ought not only to establish his debt there, but sue out execution.

Whether a return of nulla tom on such execution be necessary, Qu ?

The bill charged that the plaintiff, as the surety of the defendant Charles in his official bond as sheriff of Stokes county, had been compelled to pay large sums of money for the default of his principal: that he had obtained a judgment against his principal for the sum of two hundred and thirteen dollars and twenty-seven cents, part of such payments; and that a large balance still remained due him on account thereof, for which he had obtained no judgment: that the defendant Charles, to defeat the plaintiff’ in obtaining satisfaction of his debt, had conveyed to his sons, Constantine and John, also defendants, all his property, except one mare, which he had conveyed to the plaintiff; and that the defendant Constantine had brought an action at law against the plaintiff for the value of this mare. The plaintiff insisted, that all the conveyances by the defendant Charles to his sons were fraudulent; and prayed a discovery and account of the property of Charles in the hands of the other defendants; and for satisfaction of his debt out of the property or money.

The defendants answered, and denied all the allegations of the bill. Proofs were taken, and the cause trans-red to the Supreme Court for hearing.

Waddell, for the plaintiff.

*609Dec. 1837.

J. T. Morehead and Boyden, for the defendants.

Daniel, Judge,

after stating the case, proceeded : — The defendants might and ought to have demurred to the bill. The plaintiff, although he obtained a judgment at law for part only of his demand against Charles Banner, never, as we can discover, took out any execution to obtain satisfaction at law, even for that portion of it which he had reduced to a judgment. The plaintiff should have obtained a judgment at law for his entire demand, and then issued an execution on the same. Because, until execution, the plaintiff has no lien on the property as to which he asks the aid of this Court for a discovery and satisfaction. In Angel v. Draper, 1 Vern. 399, the defendant had come to the possession of the goods of the debtor in a fraudulent manner, but notwithstanding, upon the defendant’s demurring because the plaintiff (a judgment creditor) had not alleged that he had taken out execution, the Court allowed the demurrer, and said that the plaintiff ought actually to have sued out execution before he brought his bill. To the same point is Shirley v. Watts, 3 Atk. 200. The plaintiff should show that he had sued out the writ, the execution of which is sought to be avoided, or the defendant may demur. 1 Mad. Ch. Prac. 205. Whether it is necessary to show a return of nulla bona, it is not now necessary to inquire, as no writ of execution ever issued on the plaintiff’s judgment.*

The defendants did not demur. They have answered and denied the allegations in the bill, and the parties have gone to proofs. We have examined the testimony, and the plaintiff has, in our opinion, failed in proving that the two sons of Charles Banner have any money or property of their father, which ought to be subjected to the satisfaction of his demand. We think the bill must be dismissed; but the defendants are entitled to recover costs only as in case of a demurrer sustained, viz. one attorney’s fee.

There is another matter controverted between the parties in relation to which the Court makes no decree. The *610bill alleges that the defendant Constantine has brought an-action at law to recover from the plaintiff the value of a mare, which the plaintiff claims by conveyance from th& defendant Charles. The Court leaves that matter to be-settled between the parties in the suit at law, if the same be yet pending.

Pee Curiam. Bill dismissed.