Thompson v. Ford, 29 N.C. 420, 7 Ired. 420 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 420, 7 Ired. 420

LEONARD E. THOMPSON vs. ROBERT W. FORD.

Where a slave has been conveyed by 'deed in trust for the payment of debts, a sale of such slave, under an execution against him. who executed such deed, is not valid, at least while any of the debts remain unpaid.

The indorsement by such a trustee on the deed* “ that he had sold (a certain negro) and. satisfied' the claims mentioned in the within deed and retained a balance of $. in my hands,” does not purport, or amount to a conveyance by him, but only shews, that he then no longer held the title for the creditors secured in the deed, as one of the trusts, on which he took it originally, but only for the maker of the deed, or such persons, as might bo entitled, through him, either by contract or act of law.

The case of Brown v. Graves, 4 Hawks 342, cited, and approved.

Appeal from the Superior Court of Law of Lincoln County, at the Spring Term, 1847, his Honor Judge Settle presiding.

This is an action of trover, for a slave named Willis, in which, the defendant pleaded, not guilty. It came before the Court upon the following case agreed.

On the 24th of February, 1842, William Fullenwider, of Lincoln County, then the owner, conveyed the said Willis and a woman named Eliza, by deed of trust, to the plaintiff, in trust to sell, and, out of the proceeds, pay certain debts,, in the deed mentioned; and the deed was proven and registered on the same day. Payments were made on the debts secured by Fullenwider, so as to reduce them considerably during the year 1842. In June, 1842, Jacob Ramsour recovered two judgments against Fullenwider: one, for $136 17 1-2, and the other for $1,087 35; and he issued writs of jfieri facias thereon, and raised the sum of $123 21, by the sale of some land: and as to the residue there' were returns of nulla bona, in September 1842. In October following Ramsour exhibited his bill in the Court of Equity,, against Fullenwider and Thompson, charging that the two slaves were of value,, more than sufficient to. discharge the balance of the secured debts, then unpaid, and praying to have his debts satisfied out of the surplus; and that suit is still pending. On the Sth of January, 1843, the negro Willis was taken out of the possession of the present plaintiiT, ■by a constable, upon two justices’ executions against Fullenwider, for about the sum of -$102, and delivered by him to Fullenwider: and Fullenwider immediately sold the negro to the present defendant, at the price of $600, whereof the sum of $102 was applied to the payment of the executions in the constable’s hands, and the residue of $498 credited on a debt, which Fullenwider owed Ford; and then he, Ford, earned the negro to Cabarrus County, where he resided: Shortly afterwards the negro returned to the possession of the plaintiff and he kept him about a month. He was then enticed away, by some person unknown, and earned back to Cabarrus* and was then seized by the sheriff of that county, under a fieri facias issued on a judgment in Lincoln Superior Court, in favor of John F. Cowan against said Fullenwi-der. and another, bearing teste the second Monday after the third Monday of February 1843 ; and he was sold, at the price of $600, on the second day of June 1843, to the present defendant, who has since held the negro and claimed him, as his own.

On the 5th of June, 1843, the plaintiff sold the woman Eliza, for the sum of $362, and then made on the deed and signed an entry, in the following words, “Sold negro Eliza for the sum of $362 and satisfied the claims mentioned in the within deed, and retained a balance of $247 01 in my hands.”

After filing his bill, Ramsour sued out other writs of fieri facias on his judgments, and, after indemnifying the sheriff, had some personal property sold, which was claimed by other persons, and thereby raised on the one execution the further sum of $54, and on the other that of $447 05.

This suit was brought in September, 1843 ; and, upon •the case agreed, judgment was entered for the plaintiff for a sum specified therein, for which it was to be entered, in case the opinion of the Court should be for the plain-/ ¡tiff; and from the judgment the defendant appealed.

Thompson and Williamson, for the plaintiff.

Toy den ajid Iredell, for the defendant.

Ruffin, C. J.

The Court can take no notice of the' rights of Ramsour, arising out of the filing and prosecution of his bill in the Court of Equity. It belongs to that Court, to vindicate its jurisdiction, by dealing with persons, who violate rights created by a Ms pendens there.

Sitting in a Court of Law, we cannot judicially know, how a Court of Equity will apply an equitable fund, of this sort, to the satisfaction of creditors, or as between the creditors and the assignee of its owner. We can look only to the legal rights of the parties to this record. But confining ourselves even to that limit, we hold that the plaintiff must recover. The plaintiff got the legal title, by the conveyance of Fullenwider, and it has never been divested out of him and gained by the defendant, of course the defendant took nothing by his purchase from Fullenwider himself. Nor did he get a title under the purchase from the sheriff, because the negro, at the time he was seized and sold, was not liable to execution and consequently the sale passed nothing. The second Section of the Act of 1812, which authorizes the sale of .an equity of redemption, is confined to a mortgage of lands, tenements, rents and hereditaments ; and, therefore, this case is not within that clause of the Act. Nor is it within the first section; although that extends to both lands and goods ; because, on the second of June, 1S43? when the defendant purchased, there was a balance due pn the debts secured by the deed and the same remained due, until the 5th of that month, when it was paid out of the proceeds of the sale, then made of the other negro, by the plaintiff. At the sale to the defendant, therefore, the negro Willis was not held by the plaintiff upon a pure and simple trust for Fullenwider, the defendant in the execution, but upon a mixed trust, for him and the creditors secured in the deed; and that is not within that section of the Statute, Brown v. Graves, 4 Hawks. 342, and the sale to the defendant passed nothing.

The memorandum made on' the deed and the facts stated in it, did not determine the plaintiff’s title. They do not purport or amount to a conveyance by him, but only show, that he then no longer held the title, for the benefit of the creditors secured in the deed, as one of the trusts, on which he took it originally, but only for Fullen-wider or such persons, as might be entitled through him, either by contract or act of law. Still the legal title was left in the plaintiff and that entitles him to judgment in this action.

Per Curiam. Judgment affirmed.