Grimsley v. Hooker, 56 N.C. 4, 3 Jones Eq. 4 (1856)

Dec. 1856 · Supreme Court of North Carolina

56 N.C. 4, 3 Jones Eq. 4

WM. P. GRIMSLEY and others against TRAVIS E. HOOKER and others.

Where an insolvent person purchased a stock of goods in a distant market^ and immediately, on getting home, conveyed them in trust, partly to secure a feigned debt, and stipulated in the deed for his possession of them, for sixteen months, without any explanation or reason given to rebut the presumption of fraud arising from such provision, held, that the deed was void as against creditors.

A creditor, in order to reach property which has been fraudulently conveyed, must take hold of the property by getting a judgment and seizing it under an execution. A second conveyance to such creditor, or for his benefit, by the fraudulent grantor, will give no lien or title to the property.

Where, after a creditor had commenced an action, and before he could get a judgment, a trustee in a fraudulent deed of trust sold the property, and put it out of the reach of the execution which afterwards issued, held, that such trustee was liable to the judgment creditor, to the amount of the property sold by him.

Cause removed from the Court of Equity of Greene County.

In the month of August, 1853, Tilman II. Dixon, by exhibiting forged letters of recommendation, obtained a credit, and purchased in the city of New York, goods to the amount of four or five thousand dollars from the several firms who are plaintiffs and defendants to this suit, all on time. lie returned directly to Ilookorton, his place of residence, in Green County, in this State, and soon after his arrival, to wit, on the -day of September in the same .year, made a deed in trust of the whole stock thus purchased in New York to the defendant Travis E. Hooker. The said deed of trust recited all the debts which he had lately contracted in the city of New York, also several which he owed in the neighborhood where ho lived; among these latter, was a debt of $850 to the trustee, Travis E.- Hooker, and in the said deed it was provided that, “ if the aforesaid debts, and every part thereof, together with the lawful interest that may have accrued on the same, shall not be fully paid off and satisfied on or before the 1st day of January, A. D., 1855, then, and in that, case, it shall be lawful, and it shall be the duty of the said Travis E. Hooker, trustee, being thereunto required by three or more of the creditors named in the first class,” to advertise and sell the said goods, cither for cash or solvent, "bonds carrjdng interest from the date. It is then provided that the several debts due in the neighborhood, including that to Travis E. Hooker, the trustee, should/cm the first class, and be paid in the first instance. Afterwards, that the several debts due to the New-York merchants, Bruce & Co., Mathews, Lewis & Co., and Earnham, Davis & Co., should form a second class, and be paid in the next instance ; and then, that the debts due to the other New-York merchants, Byrd & Co., Treadwell & Gould, Carrington & Orris, Nankin & Dnryee, Mayhew & Co., McFarland & Bragg, and Wesson & Co., should form a third class, and be paid accordingly.

This deed in trust was made without the knowledge or approbation of the New-York merchants above named, and never was, in any way, put in use, set up or relied on, by the plaintiffs in this cause. The debt of $850 mentioned as being due to the trustee, except as to the sum of $50, was not a true debt, but entirely feigned.

The plaintiffs, Vm, Byrd & Co., Carrington & Orris, and Wesson & Co., caused suits at law to be commenced against Dixon, returnable to the November Term, 1853, of Greene County Court, and had him arrested. Shortly thereafter, the defendant Hooker, to wit, about the 25th of January, 1854, took possession of the stock of goods which remained on hand, and sold them at auction for about $1030. lie also took possession of the notes and accounts due to Dixon for the goods sold by him.

On the 28th of January, 1854, Tilman II. Dixon, executed another deed in trust in favor of those merchants who had caused him to be arrested, and of the plaintiff Grimsley, who had become Dixon’s bail in these cases, and who also had a claim against him for five hundred dollars, which was not included in the former deed in trust. This deed conveys the money and effects in the hands of Hooker, the former trustee, also various accounts on persons owing Dixon. It provides for the payment of these claims of Byrd & Co., Carrington & Orris, Wesson & Co., and W. P. Grimsley ; also for the indemnity of Grimsley, as the bail of Dixon. Yery soon after this latter deed in trust was made, Dixon absconded, and has never returned to the State. At the next term of Greene County-Court, Feb. 1854, the plaintiffs obtained judgments for their debts as follows : Grimsley, for $501,28 ; Wseson & Co., for $109,21; Wm. Byrd & Co., $496,21; Carrington & Orris, for $179,66. Executions were taken out and given to the sheriff, who returned thereupon nulla bona.

The prayer of the plaintiffs’ bill was to set aside the first deed as fraudulentand void; to setup the seeond deed, and to hold the trustee to an account for the proceeds of the sale of the goods, and for the money collected, or which might have been collected; also for general relief.

The defendants answered, insisting upon their different views of the facts, but it is not deemed important to state them. There were replication and proofs, and the cause being set down for hearing, was sent to this Court for trial.

Dortch, for plaintiffs.

Hodman and Stevenson, for defendants.

PeaRSON, J.

The deed of trust executed by Dixon to Ilooker, is fraudulent and void as against creditors. To say nothing of the forged letter of recommendation, and the other circumstances which throw suspicion upon the whole transaction, the deed of trust allows the debtor to retain possession of the goods for more than a year, and there is no evidence tending to explain this badge of fraud, or to rebut the presumption that the debtor was allowed to retain possession for his own use, and, in the mean time, the deed was intended as a cover to protect the property and keep it out of the reach of creditors. Indeed, ¡the insolvency of the debtor, the nature of the goods, being ordinary merchandise, readily put out of the way, the feigned debt of $860 to the trustee, and all the circumstances, make out a case of bare-faced fraud. Hardy v. Skinner, 9 Ire. Rep. 191; Hardy v. Simpson, 13 Ire. Rep. 132; Jessup v. Johnson, 3 Jones’ Rep. 335.

The plaintiffs cannot take the benefit of the deed of trust subsequently executed by Dixon to secure them, without allowing the true debts, set out in the deed to Ilooker, to be first paid; for that deed, although void as to creditors, is good between the parties, and Dixon had nothing at the time he executed thelast deed excepting his resulting trust. It is true, the plaintiffs are creditors, and this deed was made to secure them, but under it they derive title from Dixon, and of course get nothing, for he had nothing except the resulting trust. A creditor, in order to reach property which has been conveyed by a fraudulent deed, void as to him, must “ take hold ” of the property by getting j udgment and having it seized under execution. Until that is done, the debt is merely personal and gives no lien or title to the property. This is settled by all the cases. See Green v. Kornegay, 4 Jones’ Rep. 66, decided at this term. A deed from the debtor will not answer the creditor’s purpose. lie must reach the property by a title paramount to that of the fraudulent donee.

But the case discloses other facts which give the plaintiffs an equity to hold the defendant Hooker to account for all the property which he took into his possession and sold, and the debts which he collected, or might have collected, and in this view of the case, the fraudulent deed, and the debts therein set forth, will be put out of'the account, and such debts only will be considered as were reduced to judgments, and upon which execution issued. The plaintiffs took judgments and issued executions, which would have been levied on the property so as to give them “ a hold on it,” but for the fact that Hooker sold all the property, which he was enabled to do by reason of the fraudulent deed, before executions could be issued. This was a wrongful act of Hooker, and a Court of Equity, acting upon the maxim that no man shall take advantage of his own wrong, will consider the plaintiffs’ right to be the same as if they had caused the executions to be levied. To subserve the ends of justice, Equity will consider that done which ought to have been done. This is a familiar maxim ; and, on the same principle, unless the rights of innocent persons be affected, Equity will consider that as not done which ought not to have been done. In other words, it will deal with the parties as if the wrongful act had not been done.

There will be a reference for an account.

Risk Cukiam. Decree accordingly.