Den. on dem. of Jimmerson v. Duncan, 48 N.C. 537, 3 Jones 537 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 537, 3 Jones 537

Den. on dem. of ALEXANDER JIMMERSON vs. JAS. H. DUNCAN.

Where a son bought a tract of land with the money of his father, and took the deed in his own name, but really for the use and benefit of his father, and for the purpose of defrauding his father’s creditors, such land is not liable to be sold under the Act of 1812, upon an execution against the father. The creditor’s remedy in such a case is in Equity.

Action of ejectment, tried before Bailey, Judge, at the Spring Term, 1856, of McDowell Superior Court.

The land in controversy had belonged to John Duncan, who conveyed the same to A. L. Erwin, in trust, to secure certain debts due by him. The trustee made sale of the premises, when James II. Duncan, a son of grantor, became the purchaser, paid the purchase money, and took a deed for the land from the trustee, dated in 1838.

The plaintiff claimed this land as a purchaser at sheriff’s sale, under an execution against John Duncan, the father. The Judgment on which this execution issued, was rendered in 1841, and a levy and sale made subsequently thereto. The sheriff’s deed to him was dated 9th December, 1850.

The plaintiff then offered evidence to show, that although the defendant was the ostensible purchaser at the trustee’s sale, yet, that it was, in truth, a purchase for the benefit of the father, and that the father, John Duncan, furnished the whole of the purchase money ; that this was done upon a secret trust, and with the fraudulent design of hindering, &c., the creditors of said John, in the collection of their debts.

Upon an intimation from the Court, that the land in controversy, was not liable to be sold under execution according to the Act of 1812, the plaintiff took a nonsuit and appealed.

Avery and AT. W. Woodfin, 'for plaintiff.

Baxter and Gaither, for defendant.

Battle, J.

We are unable to distinguish this ease from those of Gowing v. Rich, 1 Ire. Rep. 553, and Gentry v. Harper, 2 Jones’ Eq. 177; and we think, therefore, that the judgment of nonsuit was right. It is not pretended that the conveyance to A. L. Erwin, as trustee, was not bona fide and fair. Admitting that conveyance to be good, the legal title of the land in question was transferred from John Duncan, the grantor in trust, to the trustee, and then the purchase from him by the defendant, James II. Duncan,, supposing it to have been with the money of his father, created exactly such a trust as those of Gowing v. Rich, and Gentry v. Harper, in which it was held that the remedy of creditors was not by a sale of the debtor’s interest at law, but by a bill to subject it in Equity.

Dobson v. Erwin, 1 Dev. and Bat. Rep. 569, and Morris v. Allen, 10 Ire. Rep. 203, cited for the plaintiff, were eases where sales by sheriffs were successfully impeached for the fraudulent contrivances of the debtors and ostensible purchasers, in consequence of which, it was held' that the- legal- title of the lands still remained in the debtors, and of course- subject, at law, to be sold under execution, at the instance of creditors.

Per Curiam.

The judgment is affirmed.