Tabb v. Williams, 57 N.C. 352, 4 Jones Eq. 352 (1859)

June 1859 · Supreme Court of North Carolina

57 N.C. 352, 4 Jones Eq. 352

E. P. TABB & COMPANY against JOHN WILLIAMS AND WIFE AND ANOTHER.

A bill was brought to subject equitable property to the payment of a judg- ■ ment at law, in which it was alleged that the defendant, in that judgment, was insolvent, that he had no property that could be reached by an execution at law, and that executions, on other judgments against him, had been returned nulla bona, to which the defendant demurred; it was Held not necessary to show that an execution had issued on the judgment at law, and been returned nulla bona.

A Us pendens constitutes a lien on equitable property, in a case where it can be properly sought in this Court, and it is not necessary to restrain the holder of such property from paying it to the cestui que trust, (he being a party,) for the Court will make all proper orders for the protection of the fund.

Cause removed from the Court of Equity of Bertie.

• The plaintiffs alleged in their bill, that the defendant, John "Williams, became indebted to them in the sum of about §258, and that at November Term, 1858, of Bertie County Court, they obtained judgment for the amount; that shortly before the rendition of their judgment, the defendant had, by absolute conveyances, by deeds of trust, and executions in the hands of officers, been stripped of every species of property that could be reached by execution, and that several fi. fas. issuing on other judgments, had been returned by the officers holding them, nulla Iona, and that he held himself out as largely insolvent; that by a certain deed of trust and marriage settlement, dated 2nd of January, 1855, executed by the said Williams and his intended wife, Rachel, (then Rachel Thompson) to the defendant Beasley, as trustee, the incomes of certain lands, slaves and other personal property, therein described and set forth, was secured to the said Williams, which he fraudulently endeavors to conceal, and to hinder the plaintiffs from having satisfaction therefrom. The prayer of the bill is for a discovery, and that the plaintiffs may have satisfaction out of the fund above mentioned.

The defendant Williams demurred generally. The defendant Beasley demurred specially, because, that the bill does not pray for an injunction to restrain him from paying over the income to the said Williams.

The cause was set down for argument on the demurrers and sent to this Court.

Winston, Jr., for the plaintiffs.

Garrett, for the defendants.

Battle, J.

In the case of Hough v. Cress, decided at the last term of this Court, (ante 295,) it was said, that “ with respect to property, purely equitable, whether that of a male or female, relief ought to be had in this Court, whether by an execution against the estate, and a return of nulla bona, or otherwise, it appears that there is nothing out of which satisfaction, at law, by execution against property, can be had.” Here, it is stated explicitly in the bill, that no satisfaction of the debt of the plaintiffs could be obtained by an execution at law, because the defendant, Williams, was entirely insolvent for a large amount, and that many executions against him, in other cases, had been returned nulla bona. These statements are admitted by the demurrer to be true, and if so, the plaintiffs’ claim to the relief, which they seek, is clear and undoubted. As against this relief, the special cause set forth in the demurrer of the defendant Beasley, the trustee, furnishes no substantial objection. The suit constitutes a lis pendens, which certainly prevents an assignment by the debt- or as against his creditor, and would, we think, protect the trustee against the demands of the debtor or his assignee. Hence, there is no necessity for a formal injunction ; as the Court would, whenever called upon in a proper cáse, make the necessary orders for protecting the fund in the hands of the trustee, so as to have it ready for any decree, which might be made in favor of the creditor.

The demurrers must be overruled with costs, and the cause remanded to, the Court below, in order that the defendants may put in answers,

Eer Curiam, Decree accordingly.