Green v. Kornegay, 49 N.C. 66, 4 Jones 66 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 66, 4 Jones 66

J, K. GREEN AND WM. K. LANE, ADMR’S., vs. JOHN A. KORNEGAY.

A deed in trust was made to one who had no knowledge of its execution at the time, but shortly afterwards, on being informed of the fact by the draftsman of the deed, he assented to it, agreed to act as trustee, and appointed an agent to get possession of the property, who had the deed registered, and proceeded, as agent, to demand and sue for the property; Held, that this was a sufficient delivery of the deed, though it had never actually been in the hands of the bargainee.

A deed in trust to secure a separate use in property to a wife, is not required to be proved and registered within six months, or be void as to creditors and purchasers.

A voluntary conveyance of personal property passes the legal title as to subsequent purchasers, though void as to creditors. ■

A creditor can only take advantage of a voluntary and fraudulent conveyance by reducing his claim to a judgment, and seizing the property under an execution.

An action accruing to a lunatic can only be brought in his name.

This was ail aotioN of detintfe, tried before SauNdeRs, J., at a Special Term, December, 1856, of Wayne Superior Court.

The plaintiffs claimed title to a negro slave named Martin^ by virtue of a deed in trust, executed in September, 1852, by one Henry Roberts to John A." Green, the plaintiffs’ intestate. The consideration expressed in this deed was one dollar, and the trust was for the sole and separate use of Nancy P. Roberts, the wife of the said Henry, during her life, and after her death to be reconveyed to the said Henry. The subscribing witness, who was a member of the bar, proved that Roberts came to his office on the day of the date of the deed, which was the 11th of September, 1852, aud requested him to draw this deed and another, by which he, said Roberts, conveyed to a trustee, for the benefit of his wife, a house and lot near Goldsboro’. He drew the deeds as requested, and that 'for the slave had been in his possession ever since its execution up to the trial of this suit, except when it was in the hands of the public register for registration. He stated that it never had been in the hands of John A. Green, but that some days after its execution he made the transaction known to him, when he agreed to act as trustee and gave witness authority to act as his attorney in any matter necessary to secure the possession of the slave Martin. Witness, by virtue of this authority, demanded the slave from the defendant, -which he refused to deliver, and a few days thereafter brought this suit. This witness also proved that the bargainee, John A. Green, after the execution of the deed, to wit, in the winter of 1853 and 1854, was insane, and that, in March following, lie died in a lunatic asylum, and that, some year or two before the bringing of this suit, Green had had occasional attacks of insanity. The writ in this suit was issued 21st of Eeb., 1854. The deed was registered April 8th, 1853.

The defendant then offered in evidence a deed from Roberts to him for the slave, Martin, bearing date 11th October, 1852, and registered within the next month, and proved a full price and the Iona ficle payment of the consideration, in money,' .and in money’s worth. He also proved, that after Roberts bad made this conveyance to the defendant, he said that he had made a deed for Martin, and for the house and lot near Goldsboro’, but that the deed was good for nothing.

There was evidence introduced in behalf of the defendant, tending to show that, at the time of the deed from Roberts to Green, the bargainor was largely indebted, and nearly, if not quite, insolvent; and that he was, at that time, indebted to the defendant in the sum of $360; and there were, also, other circumstances tending to show that the deed to Green was voluntary aud fraudulent.

It was also proved that, in Nov., 1852, Green told witness that he never had seen the deed which Roberts had made to him; that he should not act as trustee, and should bring no suit for the recovery of the slave Martin.

The defendant contended,

1. That the deed under which the plaintiffs claimed was never delivered, and the said John A. Green had never accepted the trust.

2. That the deed in trust had not been registered according to law.

3. That the deed, being voluntary, was fraudulent, and void as to the defendant; first, because he was a purchaser for a full and fair consideration without notice, and secondly, because he was a creditor.

4. That the insanity of Green, after appointing his agent, was a revocation of the authority to demand the slave and bring this suit.

His Honor decided these several points against the defendant, and instructed the jury accordingly; upon each of which defendant excepted.

Yerdict and j udgment for plaintiffs. Appeal by defendant.

Bryan, for plaintiffs.

W. A. Wright, for defendant.

Battle, J.

Neither of the objections urged against the right of the plaintiffs to recover the slave in question is of sufficient force to prevent it.

1. The deed was undoubtedly delivered, if not before, as soon as the draftsman informed the bargainee of it, and he had consented to act under it as trustee for the feme covert. McLean v. Nelson, 1 Jones’ Rep. 396.

2. The second objection has been properly abandoned here. The deed in question was not intended as a security for money, and is not, therefore, one of those deeds in trust which must be proved and registered within six months, or be void as to creditors and purchasers.

3. The recent case of Long v. Wright, 3 Jones’ Rep. 290, shows that the defendant, as the subsequent purchaser of a personal chattel, could not set aside the prior conveyance to the plaintiffs’ intestate. The case of Williford v. Conner, 1 Dev. Rep. 379, is equally in point to show that, as a creditor, the defendant could take advantage of the deed to the intestate’s being voluntary and fraudulent, only by reducing his debt to a judgment and seizing the property under an execution.

4. The action was properly brought in the name of John A. Green, the plaintiffs’ intestate, though he were a lunatic at the time. Brooks v. Brooks, 3 Ire. Rep. 389. We are aware that it is said in Stock on Non Compotes, 211, (15 Law Lib. 117,) that in England the committee of a lunatic’s estate “ can neither bring nor defend actions or suits on behalf of the non compos mentis, without previously obtaining the permission of the Court to do so.” See Largent v. Berry, 3 Jones’ Rep. 531. IIow the objection is to be made, or whether it can be made at all by the other party on the trial, it is unnecessary for us to enquire. Here the plaintiff died, and his administrators are made parties, and they can undoubtedly recover any property to which their intestate was legally entitled, and which is unlawfully detained from them.

There is no error, and the judgment must be affirmed.

Pee Cdeiam. Judgment affirmed.