Gentry v. Harper, 55 N.C. 177, 2 Jones Eq. 177 (1855)

Aug. 1855 · Supreme Court of North Carolina

55 N.C. 177, 2 Jones Eq. 177

ALLEN GENTRY against WILLIAM HARPER AND OTHERS.

Where a person, much in debt, paid for a tract of land and had a title bond made to convey to his daughter, an iniant, in order to defraud his creditors, a Court of Equity will entertain a bill to subject the debtor’s interest to the satisfaction of a creditor who has got a judgment and an execution with a return of nothing made.

Cause removed by consent from tlie Court of Equity of Aslie County, at the Spring Term, 1855.

The plaintiff, in his bill, alleges that at the May Term, 1S54, of the Court of Pleas and Quarter Sessions of Ashe county, he recovered a judgment against the defendant, William Harper, for $2Q2.S3 principal and $26.56 interest, and that execution issued for the same which was returned by the sheriff “ nothing made that the said judgment remains unsatisfied, and that the defendant Harper has no property or effects which can be levied on by an execution at law.

The plaintiff in his bill further alleges, that in Eeb’ry, 1816, the defendant Harper agreed with the defendant Jacob 1V"ut-ters for the purchase, in fee simple, of a tract or parcel of land, lying in Ashe county, adjoining, &c. (describing it) at the price of $106, which has been nearly all paid to the said Jacob by the said William.

It is further alleged in the plaintiff’s bill, that at the time of this purchase, William Harper was involved in debt, and for the purpose of fraudulently concealing his interest in this land from his creditors, he caused a bond for the title for the same to be made by the said Jacob Watters to the defendant Elizabeth Harper, who is the daughter of the said William, in which it is covenanted that he, said Jacob, would make a title to the land in fee simple, upon the payment of the purchase money. That Elizabeth was not a party to this agreement, but was at that time an infant, living with her father and totally -without means ; that she had no knowledge of this bond or agreement, and that her name was used for the sole purpose of defrauding the creditors of the defendant Harper, among whom was the plaintiff, and that the said bond was in fact delivered to the said "William for his own nse and benefit and not for that of the defendant Elizabeth, and that the bond remained in his possession and custody until after the rendition of the judgment, and after the said Elizabeth came'of age: that then, with the sole purpose of concealing his property and of defrauding the plaintiff and his other creditors, the said William Harper delivered up the said title bond to the said ■Jacob Watters, who still has the same, and denies that he has any interest in the land in question : that plaintiff has tendei*-ed to the defendant, Jacob Watters, the remainder of tire purchase money, which the said Jacob, with a.like fraudulent purpose refuses to receive and to make the title of the land in question, and denies that the said William has any interest in the same. Elizabeth Harper and Jacob Watters are made parties defendant with William Harper.

The prayer of the bill is, that the interest of the defendant Harper in the land may be declared by this Court and subjected to the satisfaction of the plaintiff’s debt.

The defendant Harper filed a demurrer to the whole bill, and the same being set down for argument, was sent to this Court.

Lenoir and Weal, for plaintiff.

II. O. Jones, for defendants.

PeaksoN, J.

From the principles decided in Gowan v. Rich, 1 Ire. Rep. 533; Dobson v. Erwin, 1 Dev. and Bat. Rep. 570, it is clear that the debtor has not such an equitable or trust estate as is liable to be sold under an execution at law: and it is equally clear that he has such an interest in the land as a court of equity will subject to the claims of creditors : upon the broad ground, that it is against conscience for debtors to attempt in any way to withdraw property or effects from the payment of debts. If the Courts of Common Law cannot reach the debtor’s interest, a Court of Equity will.

Pick CukiaM. Demurrer overruled.