Rountree v. McKay, 59 N.C. 87, 6 Jones Eq. 87 (1860)

Dec. 1860 · Supreme Court of North Carolina

59 N.C. 87, 6 Jones Eq. 87

JONATHAN D. ROUNTREE against WILLIAM McL. McKAY, Trustee, AND OTHERS.

Where a bill was filed, by a judgment creditor, against a trustor and his trustee, to have satisfaction of his judgment out of the resulting interest of the trustor, alleging that the debtor had not a legal title to any property, whatsoever, and that the interest, sought to be subjected, was one, which only could be reached in a court of equity, it was held not to be necessary to state that the plaintiff had taken out aft. fa. on his judgment, and that the same was returned nulla bona.

Where a bill was filed by a judgment creditor, to subject the resulting interest of the trustor in personalty, and it appeared that other judgment creditors, as well as plaintiff, had levied,/?, fas. on the trustor’s interest in the land conveyed in the deed of trust, it was held that such' other judgment creditors were necessary parties to the bill.

Where an objection, for the want of parties, was taken ore tenus, for the first time, on the argument of the demurrer in this Court, which was deemed valid, the Court refused, nevertheless, to dismiss the bill, but remanded it without costs to the Court below, that it might be amended as to parties.

This was an appeal from a decree of the Court of Equity of Wilson county, over-ruling a demurrer.

The plaintiff, Jonathan Rountree, recovered against John Waddill, jr., and Thomas Waddill, a judgment in this. Court, at its December Term, 1859, for $7587, with interest and costs. The plaintiff alleges, in his bill, that defendants have no legal title to any property whatever, out of which their judgment could be satisfied, but that they have an equitable interest in a very large property, which they had conveyed to the defendants, McKay and Fuller, as trustees, to secure other creditors; that said property consists of land and personal estate; that the deed of trust has been standing ever since, February, 1858, during which time the trustors, the Messrs. Waddill, have had the possession and use of the pro-property, and by such use, have paid off a considerable portion, at least one half, of the debts secured, and that if it had not been for the plaintiff’s judgment, they do not believe that there would have been any sale of this property, but that since the rendition of his said judgment, the trustees have proceeded to advertise a sale of all the property conveyed to them. The bill alleges further, that a writ of fieri facias on the plaintiff’s judgment has been levied on the trustors’in-terest in the real estate conveyed, and that several other judgment creditors have also levied executions on this resulting interest in the real estate, and he does not believe it will sell for enough to satisfy the plaintiff’s judgment.

The prayer is, that the plaintiff’s judgment may be satisfied out of the resulting interest of the trustor in the personal estate, and to that end, that the defendants may set forth the several debts, mentioned in the deed of trust, which have been satisfied, and the names and amounts of those not satisfied, also the notes and accounts conveyed to them in the said deed of trust, and a detailed statement of all the assets now on hand. The prayer is further, that the trustees may be decreed at once to make sale of the property and pay off the debs secured, and that any balance that may be in their hands, may be applied to the payment of the plaintiff’s judgment.

The defendants demurred, for the cause: that the bill does not set forth that the plaintiff had taken out a fieri facias and had the same returned by the sheriff nulla bona. On the argument here, the defendants’ counsel assigned, ore terms, a further ground of demurrer, that the creditors mentioned in the bill, as having had their executions levied on the trustor’s interest in the real pi’operty, conveyed in trust, were not made parties to the bill. *

The Court below over-ruled the demurrer and ordered the defendants to answer, from which ruling, the defendants appealed.

Strong and J. H. Bryan, for the plaintiff.

Neill McKay and Fowls, for the defendants.

Battle, J.

The particular ground on which the demurrer is based, to wit, that the plaintiff has not set forth, in his bill, that he has issued an execution against the defendants to his judgment at law, and had a return by the sheriff of nulla bona, cannot be sustained. The bill alleges, expressly, that these defendants had not the legal title to any property whatever, and the only interest which they owned, which could be made liable to the satisfaction of the plaintiff’s debt., was one, which could be reached only in a court of equity. This is sufficient, without the allegation of the fact, for the want of which, the defendants have demurred, as is clearly shown by the case of Tabb & Co. v. Williams, 4 Jones’ Eq. 352.

If the objection, insisted upon in the demurrer, were the only one which could be taken to the bill, we should, of course, over-rule it, and at once require the defendants to answer. But their counsel have insisted here, for the first time, bjr a demurrer ore tenus, upon a defect in the bill for the want of parties, in that the creditors, who, the bill states, had obtained judgments against the defendants, J. and T. W'addill, and caused executions thereon to be levied on their resulting interest in the real estate conveyed to the other defendants, as trustees, are necessary parties, in taking the account prayed for in the bill. These creditors, we think, are necessary parties, because they are interested in having the creditors, secured by the deed of trust, paid out of the proceeds of the personal estate, so as to leave a larger surplus of the real estate, or its proceeds, for the satisfaction of their executions, while it may be to the interest of the plaintiff to have the trust-creditors paid out of the real estate, in order to leave a larger surplus of personal property to satisfy his debt, and the defendants are all interested in having the conflicting claims of the plaintiff, and the other judgment-creditors adjusted in one suit.

The demurrer ore tenus for the want of parties, must, then, be sustained ; but the effect will not be to have the bill dismissed, but to have it remanded, without costs, in order that the plaintiff may amend his bill, by making the necessary parties; see Caldwell v. Blachwood, 1 Jones’ Eq. 274. An order, to this effect, may be drawn accordingly.

Pee Curiam, Cause remanded.