Ellington v. Currie, 40 N.C. 21, 5 Ired. Eq. 21 (1847)

Dec. 1847 · Supreme Court of North Carolina

40 N.C. 21, 5 Ired. Eq. 21

ALFRED W. ELLINGTON & AL. vs. JAMES CURRIE & AL.

Where a bill seeks to recover slaves, and alleges that a deed for them to the plaintiff’s was signed and sealed by the father to whom they belonged, but was never actually delivered, but goes on to state that the deed was duly proved and registered at the instance of the father. Held, that this amounted to a delivery and conveyed the legal title, so that the plaintiffs’ remedy was at law and not in Equity.

Equity will not interfere with the operation of the statute of frauds, at the instance of either party to a fraudulent conveyance.

The case of Snider v. Lackenour, 2 Ire. Eq. 360, cited and approved.

Cause removed from the Court of Equity of Rockingham County, at the Spring Term, 1846,’by consent of parties.

James Patrick, the elder, had three children, named Mary, James the younger, and’David S.; and on the 17th of May, 1842, he executed three deeds of gift to them. By one, he conveyed to his daughter Mary a slave called Louisa, and several articles of household furniture. By another, he conveyed to his . son James, a negro called Clem, and sundry articles of furniture, and plantation utensils, and stock. By the third, he conveyed to his son David S. three negroes called Theny, Livey, and Demanda, and some furniture and other chattels. The three children were, at the time, infants, and lived with their father, and he kept the negroes in his possession after he made the deeds of gift, and used them as he had done before, up to the time of his death, which happened in February, 1544. He died intestate, leaving his three children surviving him ; and the defendant Currie took administration of his estate and took into his possession the slaves, and other things, so conveyed to his children by James Patrick. The daughter Mary intermarried with the plaintiff Alfred W. Ellington. The son James died intestate after his father, and Alfred W. Ellington administered on his estate. And the defendant Currie was appointed the guardian of the son David S. and has all the negroes in his possession.

The bill is filed by Ellington and his wife, against Currie and David S. Patrick. It states that at the time James, the father, executed the deeds of gift, he was very much in debt, and that he made the deeds, “ and caused the same to be registered with a view to keep his creditors from selling said slavesbut that he never delivered either of them, or intended to make any difference between his children, and that neither of the deeds has been found among his papers, or elsewhere, since his death. It states further that “the defendant, Currie, is assured that his intestate did not intend to divide the negroes among his children by means of said deeds, and that he had no purpose but to keep them out of the reach of his creditors, and went no further towards vesting the title to the slaves in his children than to sign, and seal, such deeds and have them witnessed and registered and yet, that on behalf of his ward, David S., he insists on the validity of the deeds and their efficacy to pass the title of the slaves respectively to the several donees ; and that he therefore claims, as belonging to the said David S., the three negroes conveyed to him, and one half of the negro Clem, which was conveyed to the infant intestate James. The bill, however, insists, that the negroes really belonged to the father, at his death, and, (admitting that James, the son, owed no debts,) that they ought to be divided equally between the surviving children ; and alleging that there are no debts of the intestate remaining unpaid, and that the slaves, and one since born, are a clear surplus of the estate, the bill prays for such equal division and distribution.

The answers do not, materially, vary the facts from the statements of the bill; but they state that the deeds wore executed and delivered, and insist that, though fraudulent and void, as against creditors, they were valid between the parties, and effectually passed the title to the negroes.

The cause was set down for hearing on the bill and answers, and transferred to this Court.

No counsel for the plaintiffs.

Iredell, for the defendants.

Ruffin, C. J.

The bill must be dismissed : for upon its face it cannot be sustained. It says, indeed, that the deeds were never delivered, and therefore that they never were complete. But the bill itself states facts, which amount to delivery. It states, that the father executed the deeds by signing and sealing, had them attested and caused them to be registered — which, of course, includes an acknowledgment of them, or a probate of them, at his instance. That brings the case literally within Snider v. Lachenour, 2 Ired. Eq. 360, as to the delivery. The subsequent loss or destruction of them, did not affect their operation, so as to vest the slaves again in the father, and enable Currie to take them as his administrator. Then, as to the other point, that the deeds were not intended to operate betweeu the pai-ties, but only to hinder creditors, it is only necessary to say, that the act avoids such deeds only in favour of creditors, and makes them effectual as against the party, and those claiming under him ; and it is well' settled that Equity will not interfere with the operation of the statute, at the instance of either party to a fraudulent conveyance. The plaintiffs are therefore entitled to the negro Louisa, and also the plaintiff A. W. Ellington, as administrator, is entitled to the slave Clem, conveyed to his intestate ; but they may be recovered at law, if Currie will not give them up, and there is no trust or other ground for a decree in respect of them in this Court.

Per Curiam.

Bill dismissed with costs,