Bryan v. Green, 38 N.C. 167, 3 Ired. Eq. 167 (1844)

June 1844 · Supreme Court of North Carolina

38 N.C. 167, 3 Ired. Eq. 167

EDMUND BRYAN vs. PETER GREEN & AL.

Where the creditor of a deceased debtor alleged, that the defendants were fraudulent donees of certain property of the said debtor — Held that the plaintiff was bound to have the representatives of the debtor parties before the court, although it was alleged in the bill that the debtor had died in an» other State, and had no representative in this State.

The case of Dozier v Dozier, 1 Dev. & Bat. E<j. 96, cited and approved.

This cause, having been set for hearing, was removed by consent from the Court of Equity of Rutherford county, at Fall Term, 1843, to the Supreme Court.

This bill sets forth, that, in February, 1841, the plaintiff obtained a judgment in Rutherford County Court against one Moses Waters for the sum of $569 50, upon a bond previously given by said Waters, and which for some cause he had declared he never would pay — that the said Waters, immediately after the rendition of the said judgment, left the State, having previously disposed of the whole of his pro- and is since dead, intestate, and no administration has taken out on bis estáte- — that, upon the flight of the said Moses Waters,- the plaintiff took out an attachment- against an(j ^g defendant Green was summoned as á garnishee, and-,- upon hi-s garnishment admitted, that- he had, in the year 1840, executed to Moses Waters his two bonds,- each for the sum-óf $600, one of which bonds 'was payable in July ’41 and the other in ’42; upon the first he had made payments to Waters- to the amount of $3-79 53, and the balance upon that and the whole' of the other was unpaid, but that he had understood,- that Moses Waters had transferred the' said bonds to his sons, John and Henry Waters, who, he was informed, had transferred them to Miller McAfee. The bill charges that Moses Waters made the assignment of the two bonds,- due from Green to' his two sons,, without consideration, and for the purpose of defeating the judgment obtained by the plaintiff against him, and that they,- the- said John' and Henry Waters, had instituted suits against Green for the recovery of the money due on the said bonds — that he was unable to obtain a judgment against the said Green on his garnishment, in consequence of the death of the said Moses Waters. The bill concludes with a prayer for relief.

The defendant Green,-, in his answer, admits his indebtedness, as-set forth in his garnishment, and his willingness to pay the-money to whomsoever the court may direct — states that the notes were by Moses Waters assigned to his sons on the 16th of July, 1840, in his presence, and for the avowed purpose of defeating the claim of the plaintiff, the said Henry and John Waters,- being at that time in the State of Georgia, and that he made the payments claimed by him between the time of the assignment and the time when Moses Waters left this State, which was in March or April, 1841 — alleges the death of Moses Waters, and denies all fraud-The answer of Henry and John Waters admits their residence in Georgia, the death of their- father and his having traded to them the two bonds, and that no administration has been granted to any one upon their fathers estate.

Badger for the plaintiff.

Moke Sf Iredell for the defendants.

Nash, J.

We are of opinion, that the plaintiff’s bill cannot, upon its own statement, be sustained. The plaintiff had obtained a judgment at law against Moses Waters, upon a bond given by the said Waters, and he having removed to the State of Georgia and having no . visible property, upon which an execution could act, the plaintiff sued out an attachment against him and had it levied in the hands of the defendant, Green, and summoned him as garnishee. During the pendency of this suit Moses Waters died, and the plaintiff sets forth, that he had no personal representative, and for that reason he comes into this court. Why could he not proceed at law against the garnishee Green ? Simply because the judgment against him would be but ancillary to the one against Waters. When a garnishee admits he is indebted to the defendant in the attachment, the sum so due is condemned by a judgment of the court to the use of the plaintiff, subject to the judgment the plaintiff may recover on his attachment. If then the defendant die before judgment, and no representative be brought in within two terms, like every other suit it abates, and of Course Carries out of court with it all its accessories. We know of no principle, which authorises a Court of Chancery to grant a decree against a dead man, more than a Court of Law. Neither court can legally proceed without having before it the proper parties. The plaintiff might have put this objection out of his way by procuring some other person to administer; though we do not decide, if such administration had been granted, it would have enabled the plaintiff to have been beneñtted in his attempt to recover the money. Should the said Henry and John Waters recover the money due from Green, they will become executors of’ their own wrong, and thereby subject themselves to the action of the plaintiff, and his redress is one at law. This court does not know of an executor de son tort, for the purpose of a remedy against him-as such. There is no doubt that chancery will afford relief against a fraudulent donee, toan equitable creditor of the donor, who is dead, but the rightful representative of the donor must be before this court. Dozier v Dozier, 1 Dev. & Bat. Eq. 96. But this is a legal claim; and the proper parties are not before the court, if it were an equitable one. If it be objected that John and Henry Waters are citizens of the State of Georgia, and that the process of the courts of this State cannot reach them, the answer is, the courts of the State of Georgia are open to the plaintiff, and we have no reason to doubt will be as proper to give him relief as the courts of this State. The bill must be dismissed with costs to the defendant Green.

Per Curiam. Bill dismissed,