Fisher v. Worth, 45 N.C. 63, 1 Busb. Eq. 63 (1852)

Dec. 1852 · Supreme Court of North Carolina

45 N.C. 63, 1 Busb. Eq. 63

HENRY FISHER against JOB WORTH AND OTHERS.

Tke Court will not entertain a 1)111 filed by a creditor for an account of a fund held by -a trustee for the payment of debts, unless all the other creditors are made parties, either plantiffs or defendants. Otherwise, the trustee might be subjected to as many suits as there are creditors — the account taken in the suit of one, being no protection in the suit of others.

Cause removed from the Court of Equity for Guilford County., at Spring Term, 1850.

In 1842, John Beard, by deed conveyed his estate real and personal to the defendant Worth, in trust to secure the payment of all his debts — the plaintiff being one of his creditors. In the fall of 1847, the plaintiff filed this bill against the said trustee, and the other three defendants, creditors of Beard, stating that at the time the said deed of trust was*executed, Beard was indebted to him in a considerable sum — that he afterwards obtained judgment therefor — and that a writ offieri facias was levied on -a portion of the property conveyed by said deed, and sold to satisfy his execution, but that the same was afterwards by suit recovered back by the trustee; and that be then issued a writ of capias ad satisfaciendunl against said Beard, but made no part of his debt thereby. The plaintiff then goes on, by numerous allegations, to charge negligence and fraud in the management of the trust by the trustee, and fraud between him and his co-defendants in regard to the disposition, loss, purchase and sale of the property conveyed. The prayer is for an account of the fund, and the payment of the plaintiff’s share as one of the creditors. It appears from the pleadings, that there were several other creditors of Beard, whose debts were secured by the said deed of trust, not made parties to this suit. ^

The defendants, in their answers, deny the allegations of fraud in the bill, and that of the trustee particularly insists that the. bill should be dismissed for the want of parties. The defendants also aver that the plaintiff, after the said deed of trust was executed by Beard, disclaimed all interest under it, denounced it as fraudulent, had executions levied on the property conveyed by it and a sale therepf; and that he was thus bound by his election, and entitled to no share of the fund.

It is deemed unnecessary to state the pleadings further, which are very voluminous, inasmuch as the cause turned upon a single point in this Court.

Miller, and J. H. Bryan, for the defendants.

No counsel for the plantiff in this Court.

Pearson, J.

A debtor executes a deed conveying all of his property to a third person, in trust to sell the property and apply the proceeds to the payment of his creditors. The plantiff was one of the creditors, and instead of taking benefit under the deed of trust in the first instance, he opposed it and attempted to collect his debt by judgment and execution. Failing in this, he falls back, and now seeks to recover his debt, by claiming under the deed of trust which he had before repudiated. Without deciding whether he is not bound by. his election, it is sufficient to .say, that he has no right to call for an account and distribution of the trust fund, without making the other creditors who are entitled to share the fund with him parties, either plantiffs or defendants, so that all may be bound by the account. The trustee should be protected, and the matter of controversy finally disposed of. Otherwise, the trustee might be subjected to as many suits as there are creditors. The account taken in the suit of one, would be no protection in the suit of another creditor. This is not allowed by the^ourse of proceeding in a Court of Equity.

Per Curiam. Bill dismissed, with costs.