Logan v. Simmons, 41 N.C. 180, 6 Ired. Eq. 180 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 180, 6 Ired. Eq. 180

BENJAMIN LOGAN BY HIS GUARDIAN vs. SQUIRE SIMMONS.

The creditor of a non-resident debtor, who is brought in by publication, cannot have a decree for the satisfaction of his claim, out of debts due by persons in this State to such non-resident debtor.

Tlie case of Yarbrough v. Arrington, 5 Ire. Eq. 291, cited and approved.

Cause transmitted from the Court of Equity of Cleave-land County, at the Spring Term 1849.

In October 1845, the defendant, Squire Simmons, then of Rutherford County, sold and conveyed to the defendant, Bedford, a tract of land situate in Rutherford, at the price of $950; of which he paid down the sum of $400, partly in cash and partly in the notes of other persons. For the residue he gave his bonds, by the direction of' Simmons, to his sons William and Joseph Simmons. The notes were transferred by Bedford without endorsement; and Squire Simmons delivered them also to his two sons, who placed them in the hands of the defendants, Davis and Hauser, for collection, and soon afterwards Simmons and his sons removed to Georgia, carrying all their property with them and having nothing in this State, except the above mentioned debts. The bill was filed in July 1846, and states, that, at the time of the sale and the removal of Simmons, a suit was pending in the Court of Equity, which the plaintiff had brought against Squire Simmons to recover, among other things, a large sum of money for the profits made by Simmons from certain slaves, belonging to the plaintiff, wherein an interlocutory decree had been made for an account; and that the said sale was made with the intent to defeat the plaintiff of the benefit of the recovery, he might and was expected to make in that suit, and that Bedford knew of such intent; and that the bonds were made payable, and the notes transferred, to the sons voluntarily, in order more effectually to carry out the fraudulent intent. The bill further states, that, upon taking the account, a sum was found to be due thereon to the plaintiff of $2000, and that a decree was made therefor in June 1546, and a fieri facias was sued out thereon, directed to the Sheriff of Rutherford, who returned nulla bona, The prayer of the bill is, that Bedford, Davis and Hauser, may be enjoined from paying the debts, they owe as aforesaid to either Squire, William or Joseph Simmons, and that they may be compelled to pay the same to the plaintiff, towards the satisfaction of the sum due on the decree.

. The defendants, Bedford, Davis and Hauser, put in several answers, in which they state, that they have no knowledge of the alleged decree. They set forth the sums due from them respectively, and submit to pay them to the plaintiff, if the Court should think they can safely do so and make a decree to that effect. Bedford denies any intent on his part, or any knowledge of an intent on the part of Simmons, to defraud the plaintiff, in making the sale of the land and taking the bonds for the purchase money, payable to his sons; and he says, that he gave his bonds payable to the sons of his vendor, because it was immaterial to him to whom he paid the money, and he was requested to do so by those parties. After publication, the bill was taken pro confesso, as to the three Simmons. The plaintiff put in a replication to the answers, but he took no proofs. By orders in the cause, Bedford, Davis and Hauser paid at different times several sums into Court, in order to stop interest against them,' should they be held liable in the cause, and the master, under the direction of the Court, put the money out on interest.

Guión, for the plaintiff..

Baxter, for the defendants.

Ruffin, C. J.

The cause has been brought to a hearing by the plaintiff, without any evidence to establish his case. He has not even shown his decree and execution-, much less a fraudulent purpose in any of the defendants to defeat him of his demand. Indeed, if he had shown those facts, the case of Yarbrough v. Arrington, 5 Ire. Eq. 291 is in point, that he could have had no relief. The bill does not seek satisfaction out of the land upon a declaration, that Bedford’s purchase was fraudulent’; but, on the contrary, it affirms the sale, and prays payment out of the debts, created for the purchase money, upon the ground, that the securities are held by the sons of Simmons, in trust for the father, or at all events as volunteers. If the land were fraudulently sold, it would be liable at law to execution or to attachment. It is, therefore, simply a case, in which a creditor is unable to reach the effects of his non resident debtor by an attachment at law, and files a bill to attach those effects in Equity. Such a jurisdiction is unknown to the Courts of Equity. It is conferred on them by Statute in some of the States; but there is no such Statute in this State, nor any precedent of the exercise of such a jurisdiction. The Court was therefore obliged to hold in the case cited, for the reasons there given, that such a bill will not lie. Consequently, there must be an order, that the suns, paid in by Bedford, Davis, and Hauser respectively, be returned to them and the interest thereon accrued, or that the securities held for the money be transfered to them ; and the bill must be dismissed with costs.

Per Curiam.

Decreed accordingly.