Wheeler v. . Taylor , 41 N.C. 225 ( 1849 )

It appears upon the bill that the defendant Nathan B. Taylor (226) was indebted in two several bonds or notes to one John Murphy, amounting in the whole to $7,000, and that the plaintiff and one Nathan Chaffin, who is dead, were his sureties. Judgments were obtained and executions issued, and the plaintiff alleges he has paid $5,000 upon them, the balance being paid by the estate of Chaffin, and that he has commenced his action at law against the defendant N.B. Taylor to recover the money so paid by him, which is still pending. The bill alleges that Nathan B. Taylor has fraudulently assigned over to the defendant Moses B. Taylor all his property of every kind, and that the plaintiff is fearful he will sell the same and collect the debt due to the assignor, and that both of them will remove beyond the jurisdiction of the court, so that, if he recover a judgment against N. B. Taylor, there will be no property subject to an execution, and he will be unable to procure satisfaction of what is due to him. The prayer of the bill is that Moses B. Taylor may be decreed a trustee for the said N.B. Taylor, and may be decreed to hold the property and debts so conveyed subject to the payment of such sum as the plaintiffs shall recover at law against the said N.B. Taylor, and be enjoined, etc., and that the other defendants be enjoined from paying to N.B. Taylor what they owe the former. It is apparent upon the face of the bill that it cannot be sustained; that in this stage of the plaintiff's controversy with N.B. Taylor he has no right to ask the aid of this Court. His allegation is that he has paid money for and on account of the defendant, as (227) his surety to John Murphy. If this be so, he has a clear legal remedy, which a court of common law is fully competent to enforce, and it is only after he has established his claim by the judgment of such court that he can claim the aid of this, either to make his execution at law effectual or to give him a decree in the nature of an execution. A court of equity never interferes in behalf of a mere legal demand until the creditor has tried the legal remedies and found them ineffectual. Rambaut v. Mayfield, 8 N.C. 85. The creditor must reduce his debt to judgment, and, in general, take out execution, that it may appear by demanding property of the defendant and the return of nulla bona that satisfaction cannot be had at law. In this case the plaintiff states that he has sued N.B. Taylor at law for this debt, and consequently in the shape of bail, has his debt assured to him. The application is not to call in the aid of the court to secure property the title to which is in a state of controversy at law, but to compel the defendant to give security for the payment of what may be found due to the plaintiff, in addition to that which he has already given at law. The recognition by this Court of the principle assumed in the bill would convert it into a court of common-law jurisdiction in every case where a debtor may be in failing circumstances or the plaintiff may have fears, just or not, that he will make way with his property.

The bill must be dismissed with costs, including a solicitor's fee for N.B. Taylor and the administrator, Benjamin Taylor.

PER CURIAM. Bill dismissed with costs.

Cited: Carr v. Fearington, 63 N.C. 562; Bank v. Harris, 84 N.C. 209;Hackney v. Arrington, 99 N.C. 115.

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