Foster v. Cook, 8 N.C. 509, 1 Hawks 509 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 509, 1 Hawks 509

IN EQUITY.

Foster et al. v. Cook.

From Franklin.

A bill in equity may be framed in the alternative with a double aspect, and relief may be granted in either case, as circumstances may require. And relief may be given under the general prayer in a bill, provided it be in accordance with, and not contradictory to the particular relief prayed for.

This was a bill filed by the heirs of one Daniel Foster, to set aside a conveyance of land and a negro, from said Foster to the Defendant, which, as they alleged, was fraudulently obtained. The prayer of the bill was, to have the conveyance set aside, and a decree for a re-conveyance, and it concluded with the general prayer for relief.

The Defendant, in his answer, denied the facts set forth in the bill, as to fraud in obtaining the conveyance; and the facts, on the responses of the Jury to the issues submitted, appeared to be these. The Defendant, as the confidential friend of Foster, undertook to assist him in the management of his business: while acting thus as his friend, he purchased, fairly and bona fide, of Foster, a tract of land and a slave : the land was of the value of $1420, and the slave was worth $400: the consideration for the sale was $1400 and the support of Foster during his life: of the $1400, the sum of $991 was paid, the balance remained due, and the support of Foster during his life was worth $420. On these facts, Defendant moved to dismiss the bill, on the ground that Complainants’ remedy was at Law. The Court refused to dismiss, and decreed that the Defendant pay to Complainants $515 46, the balance of the purchase money, with interest on $409, and all costs. Defendant appealed to this Court.

Seawell, for the Complainants,

contended, that although there was a prayer for specific relief, yet other relief might be granted, if consistent with the case made —Johns. Ch. Ca. 117 — 3 Mk. 132.)

That a person standing in the relation of an attorney, cannot avail himself of an advantage thereby acquired, and that this Defendant stood in that situation. — (4 Brown 351 — 2 Mk. 27.)

That this Defendant was to be considered as a trustee, and therefore could not purchase at his own sale' — (3 Ves. Jr. 740.)

If a person be employed as a friend to prevent another from being imposed on, taking a bond of the other is of itself fraud, and Equity will relieve against it — (Osmond v. Filar oy, 3 P. Wins. 129.)

Ruffin, contra.

The decree for the balance of the purchase money cannot stand. The specific prayer of the bill is for a re-conveyance, and there is a prayer for general relief. The case from 1 Johns. Ch. Ca. cannot apply here, because granting the relief in the decree of the Court below, is inconsistent with the case made. The bill in fact did not seek money; it does not even allege that the balance is not paid ; it seeks a reconveyance. How does it appear to this Court that a separate security was not given for this balance, which may be now outstanding in the hands of the executors ?

The rule urged on the other side, as to attornies, is peculiar to them as such. But the rule to have any bearing on this case, should be that an attorney should have no dealings with his client. Now there is no such rule — (15 Ves. 42 — 6 Ves. 278 — 1 Ves. 379 — 2 Ves. 259, 549.) But a trustee cannot purchase his trust estate. It is true, but. Cook was no trustee, the legal estate was not in him for any purpose, he had no power or control over it.

Imposition, under the pretence of friendship, is spoken of. — But here, every circumstance of fraud or imposttion is expressly negatived by the Jury. It would be a strange rule which would compel a man to deal with his enemies only, and prevent one friend giving to another a full price for the estate which he wished to sell.

But at all events these Complainants are not entitled to the money: they sue to obtain the land as heirs at law and devisees. The conveyance must stand on the find- ’ ing of the Jury, the money belongs to the :executors.

Haii, Judge,

delivered the opinion of the Court:

This bill is brought by the heirs of Daniel Foster to set aside as fraudulent, the conveyance made by him of the land in question, to the Defendant, and for no other purpose — that is the prayer of the bill.. ^Jt is true there Is a general prayer, and under that general prayer relief may be given: provided it be in accordance with, and not contradictory to the particular relief prayed for by the bill—(5 Ves. 495—3 Ves. 416—2 Atk. 141) but that is not the case here. A bill may be framed in the alternative, with a double aspect, and relief may be granted in either case, as circumstances may require—(6 Ves. 52) but that is not this case; the object of this bill is to have a decree for the land, but not for the money which may be owing for it, provided the sale to the Defendant shall not be set aside.

But what is conclusive in this case is, that if there is money due from the Defendant, that money is due to the executors of Daniel Foster, and not to his heirs, and the executors are not parties. The decree made in the Court below musí be reversed, and the bill dismissed with costs.