Kirkpatrick v. Means, 40 N.C. 220, 5 Ired. Eq. 220 (1848)

Aug. 1848 · Supreme Court of North Carolina
40 N.C. 220, 5 Ired. Eq. 220

K. KIRKPATRICK & AL. vs. JOHN W. MEANS & AL.

A judgment creditor must shew that he cannot have satisfaction by execution at law, before he can call in the aid bf this Court to subject any equitable interest of the debtor. .

Where an execution had been returned nidia bona, and afterwards the debtor became entitled by the death of a relation - to a distributive share of certain personal property, which remained in the hands of the administrator, and to a portion of the lands of the deceased! Held' that the creditor could not subject the equitable Interest in the hands bf the administrator,until he had first endeavored by an execution at Law to obtain satisfaction out of the lands descended to the debtor. ...

The cases of Harrison v. Battle, 1 Dev. Eq. 537 and Brown v. Long, 1 Ired Eq. 191 cited and approved.

Appeal from an interlocutory order of the Court of Equity of Cabarrus County, overruling a demurrer, at the Spring Term 1848, his Honor Judge Manly, presiding.

*221The bill was filed on the 6th of Novemher 1847, and states, that, in January 1843, the plaintiff recovered a judgment in Cabarrus County Court against the defendant John W. Means, for the sum off228 75, and that they sued out a cierifacias thereon, returnable to April Term 1843, on which the sheriff raised the sum of $47,50 and no more, and as to the residue he returned nulla bona. The bill further states that John W. Means became insolvent and without any property, on which an execution could be levied. That in the year 1846, one George Means was entitled to a very large estate, real and personal, in Mecklenburg County and there died intestate, and that John W. Means was entitled to a share of the said estate : That William C. Means obtained letters of adminstation of the personal estate and has possesed himself of the same to a large value, exceeding $15000, and that John W. Means is entitled to a part thereof, as one of the next of kin of the intestate. The prayer is, that the plaintiff may have satisfaction of their debt out of the said distributive share, and the administrator may be restrained from paying the same over to the said John W. until he shall have first discharged the debt tojhe plaintiff. The defendant; John W. Means, put in a general demurrer to the bill, for want of Equity. On argument it was overruled ; but an appeal was allowed therefrom to this Court.

Osborne, and Thompson for the plaintiff.

Wilson and Coleman, for the defendant.

Ruffin, C. J.

As the bill is framed it cannot be supported, we think, and the demurrer ought to have been sustained. Supposing the distributive share of an intestate’s estate, consisting, as far as appears, of money alone in the hands of the administrator, to be such an interest as can be called the equitable property of the debtor, and as such applied to the,discharge of judgment debts., yet *222it is clear, that the creditor must shew, that he is unable to obtain satisfaction by execution at lay, before he is in a condition to ask the extraordinary aid of this Court. For it is settled, that a Court of Equity cannot interpose in behalf of a legal demand, until the "creditor has tried the legal remedies, and they have proved ineffectual. It is necessary, therefore, that the creditor, should in all instances have reduced his demand to judgment, and that he should further shew, that he issued an execution, and either that it was returned nulla bona, or that the debtor had not a legal title to any property, but only the equitable property out of which satisfaction is sought in Equity. Harrison v. Battle, 1 Dev. Eq. 537, Brown v. Long, 1 Ire. Eq. 191. In this case a return of nulla bona was once made upon an execution taken out on the plaintiff’s judgment, and on that, the plaintiff might have come here against the debtor’s equitable property, if nothing more had occured. But the bill states, that at the return of that execution the debtor was entirely insolvent and had no property of any kind until 1846, -when the judgment had become dormant, and that then George Means died, entitled both to a large real and personal estate ; and it prayed satisfaction out of the- debtor’s distributive share of the latter without in any manner giving a reason, why the plaintiff could not, by reviving their judgment and suing execution, obtain satisfaction out of the share of the real estate descended to the debtor. It may be, that the debtor had disposed of the land ; and, if so, the Court below would probably allow the bill to be amended, so as to introduce a charge to that effect, notwithstanding the demurrer, at least, upon terms.- But this Court cannot take any step of that sort, as the case is here upon appeal from an interlocutory decree; and, without an amendment and in the present form of the bill, it would appear, that the plaintiff might have had an effectual remedy by execution on the judgment, and, therefore, *223that there is no ground for the interposition of the Court of Equity.

The decree overruling the demurrer was therefore, erroneous, which must be accordingly certified to the Court of equity. The plaintiff must pay the costs in this Court.

Per Curiam.

Ordered accordingly.