M'Erwin v. Benning, 8 N.C. 474, 1 Hawks 474 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 474, 1 Hawks 474

M’Erwin v. Jacob Benning.

From Mecklenburg.

When A. makes a fraudulent conveyance of his property prior to the recovery of a judgment 'against him by B, for a tort, B, although not a creditor at the time the conveyance was made, is entitled, after judgment, to a scire facias under the act of 1806.

This was a sd.fa. under the act of 1806, to secure creditors against fraudulent and secret conveyances of property by insolvent debtors.^* The fact on which the case turned was, that the Plaintiff had recovered a judgment for damages on a tort, against one David Ben-ning, and that prior to that judgment, the conveyance, alleged to be fraudulent, was made by David Benning to the Defendant. JYorwood, Judge, who presided, on this point instructed the Jury, that the Plaintiff was a creditor within the meaning of the act, from the rendition of the judgment in his favor ; and that if the conveyance was fraudulent against any creditor, whose debt was in existence at the time the conveyance was executed, the Plaintiff’s case would be within the provisions of the act of 1806. And if the bill of sale was void as to one creditor, it was void as to all creditors, as well those whose debts were contracted after the bill of sale was made, as those whose debts were in existence at the time it was made. Ycrdict and judgment for the Plaintiff, and appeal.'

Jl. Henderson for Defendant.

The Defendant does not come within the act of 1806. The intention of that act was to confine the remedy to a particular set of persons, viz. creditors, whose debts were about to be delayed j this appears from the title to the act. The Plaintiff was no creditor at the time of the conveyance. Whatever remedy he might have at Common Law, or under other statutes, remains to him; but under this act he has none. By the judgment he became a creditor, but not until after the conveyance. The words of the act embrace cases of contracts only.

* An act to secure creditors against fraudulent and secret conveyances of property by insolvent debtors.

Whereas, many frauds are committed by persons making conveyances upon some secret trust, and by persons concealing the property of insolvent debtors, so as to enable them to avoid or delay the •payment of their just debts: For remedy whereof,

Be it enacted, &c.

Haxx, Judge.

It has been objected in this case for the Defendant, that the act of 1806, (ck. 700, JV*ew Revi-sal,) does not afford the Plaintiff a remedy $ that that act only applies to Creditors and debtors. ’Tis true the title of the act speaks of the fraudulent conduct of debtors, in making conveyances, to avoid or delay the punishment of their just debts ; but the enacting clause declares, “ that upon any judgment rendered, if the Plaintiff will make affidavit, stating that the Defendant has no visible property to satisfy the same, &c. $ and that he has good reason to believe that the Defendant .lias fraudulently conveyed away property, and that some other person is fraudulently possessed of it, &c. the Court may order a scire facias to be issued against the person so claiming it.” It appears, therefore, that although the Plaintiff was not a creditor before judgment rendered, yet in the words of the act, upon the happening of that event, upon making affidavit, he is entitled to a sdre facias. In doubtful cases, the title and preamble of an act should have their due weight: in this case, I think there can be no doubt, the remedy given by the act is substituted in the room of a more circuitous one, but the rights of the parties» are left as they stood before. I therefore am of opinion, that the judgment of tlie Court below should be affirmed.

The other Judges concurred.