Mordecai v. . Parker , 14 N.C. 425 ( 1832 )

Plea — not guilty. At the trial at EDGECOMBE, on the last spring circuit, before Daniel, J., the plaintiff produced a deed of bargain and sale to him, dated 25 August, 1829, whereby Roderick Amason conveyed a tract of land to him in trust to secure his, Amason's, sureties in a bond for $10, 000, given upon his being appointed guardian to several infants. At the date of this deed, judgments for about $4, 000 were outstanding against Amason, executions upon which had a priority over it. These judgments were satisfied by the sale of the land conveyed to the defendant, together with that of other land belonging to Amason, and several of his slaves. But there remained in the possession of Amason, personal property, amounting in value to $947, which was sold under executions upon judgments against him which were subsequent to the deed to the plaintiff. No evidence was offered by the plaintiff of any injury to his cestui que trust, by a breach of the condition of the guardian bond, to which they were sureties; neither was the deed to the plaintiff (426) impeached by the defendant.

For the plaintiff, it was contended that he was seized in fee of the land conveyed to him, and that the defendant, having sold that land wrongfully, was liable to him for the value of the personal property which he had neglected to sell. But his Honor charged the jury that the plaintiff, being a mere trustee, and not showing any special injury to hiscestui que trust, was entitled to nominal damages only. A verdict was returned for the plaintiff, with sixpence damages, and he appealed. Taking the deed to the plaintiff to be valid, he is tenant in fee, and a court of law cannot say that his fee is worth less than that of another. The argument for the defendant supposes that an interest remained in the maker of the deed. That is the case where there is a pure trust for a debtor, which can be sold under execution; but then the legal title is worth nothing, and is wholly divested by the sale. It has been held that such a case as the present does not come within the Act of 1812 (Rev., ch. 830), and the reason was that courts of law were incompetent to ascertain and value the trusts. That reason applies equally here, and therefore the plaintiff was not called on for evidence upon that point. But the strong ground is, that we do not at law see that the plaintiff is a trustee. We cannot take notice how he got the fee, nor what he intends to do with it. He has it, and that determines the value of his interest. The existence of the debts intended to be secured by the deed, or their nonexistence, has a material operation upon the question of fraud in the conveyance, and to that end they may be entered into. That determines the validity of the deed; in other words, whether the grantee is tenant in fee. Admitting him to be so, he is entitled to recover the whole estate. There must, therefore, be a new trial.

But a new trial would not be granted if the jury had not found a verdict for the plaintiff for sixpence damages, which carried the costs. For although the court erred as to the rule of damages, a (427) verdict for the defendant would have stood, because the record shows that upon another trial the defendant must have a verdict. This action cannot be maintained for any purpose.

It was necessary to sell the land upon the plaintiff's own showing, since the chattels were not sufficient had they been applied to this execution. To whom would the sheriff have to account for the surplus, if any? To Amason, and not the plaintiff.

But if the chattels had been fully sufficient, it would have made no difference. The conveyance was absolutely void to all intents and purposes as against the judgment and execution. If one make a fraudulent deed, his creditor may at law seize the thing conveyed, although there may be other property, because the whole is void as to him. The creditor cannot, indeed, go into equity to clear the title from an alleged fraud, without showing that it is necessary for his satisfaction, because that court is not to be put into action, if the party can get justice without it, and by the ordinary means of legal process. But where the party can establish the fraud at law, and thus show the deed there to be void, he is at liberty to do so in the first instance. He asks no favors, and stands on his preferable right. Now a conveyance after the teste of a fierifacias is void upon the ground that it is fraudulent. So conclusive is the argument that it is in fraud of the process that nothing will be heard against it. The fact establishes the intent. The estate, then, as respects the plaintiff in the execution and the sheriff, remained to every intent the estate of Amason, the defendant in execution; and neither he nor anybody claiming under him after execution can allege anything to the contrary. If, indeed, the defendant in the execution (admitting that the land remained his) could show that the sheriff had injured him by selling that before chattels, he might. But this is personal between them. It can injure the legal rights of no other person. And here, since it took all the property of both kinds to satisfy the executions, there could be no injury even to the defendant in the execution. Indeed, the sheriff acted in good faith, and made only a just use of his (428) lawful authority, in arranging the property so as to get satisfaction of all the process, as every good sheriff will always do.

PER CURIAM. Judgment reversed.

Cited: O'Daniel v. Crawford, 15 N.C. 205; Simpson v. Hiatt, 35 N.C. 473.