Doe on Demise of Williamson v. Bedford, 32 N.C. 198, 10 Ired. 198 (1849)

Aug. 1849 · Supreme Court of North Carolina
32 N.C. 198, 10 Ired. 198
DOE ON DEMISE OF WILLIAMSON vs. JONAS BEDFORD

DOE ON DEMISE OF WILLIAMSON vs. JONAS BEDFORD.

Whore a party claims as purchaser under au execution, Issuing from a Court of Equity, and alleges, that the other party claimed under a deed, in fraud of the execution creditor, he must shew the decree of the Court, as well as the execution, and,to make the deeree evidence, It is requisite to have the bill and answer, and so much of the pleadings and orders as would shew that the decree was pronounced in a cause, properly constituted between parties.

Appeal from the Superior Court of Law of Rutherford County, at the Fall Term 1S48, his Honor Judge Manlt presiding.

The action was tried in November 1848, and the lessor of the plaintiff claimed under a sale by the sheriff on a fieri facias, against the lands of Squire Simmons, pur*199porting to be issued for the sum of $8227 00, which Benjamin Logan recovered from Simmons by a decree of the Supreme Court in a suit in Equity, lately pending therein between those parties and others. The plaintiff offered in evidence a certified copy of the execution and of the final decree, as stated in the execution, without the pleadings or any other proceedings in the cause. Upon objection made, the Court held the evidence insufficient; and the plaintiff submitted toa non-suit and appealed.

Guión and Bynum, for the plaintiff.

Baxter, for the defendant.

Ruffin, C. J.

As the defendant in this suit was not the defendant in the execution, and it did not appear, that the former came in under the latter after the lien of the execution attached, it must be assumed, that the plaintiff alleged a prior purchase by Bedford in fraud of the creditors of Simmons. Consequently, it was necessary that the plaintiff’should produce the decree, as well as the execution, in order to establish that Logan was a creditor ; Rutherford v. Robeson, (at this term.) and in order to make the decree evidence, it was, of course, requisite to have the bill and answer, and, so much of the pleadings and orders as would-show, that the decree was pronounced in a cause properly constituted between parties.

Pgr Curiam.

Judgment affirmed.