Bayner v. . Robertson , 14 N.C. 439 ( 1832 )

The defendant, among other pleas, pleaded that the slaves in question were the property of one Thomas Cox, and upon this plea the only question between the parties arose.

The plaintiff claimed under a deed made by one Stancil Bayner, to secure his creditors; Stancil Bayner died, and the defendants took out letters of administration upon his estate. Cox obtained a judgment against the defendant as administrator, and sued out an execution, under which the slaves in question were sold and bought by Cox. The defendant offered to prove that the deed under which the plaintiff claimed was designed to defraud the creditors of the intestate. But his Honor refused to let the evidence go to the jury, observing that if the deed was fraudulent as to the creditors of the intestate, it was valid against him and his administrator; that Cox's execution was to be satisfied out of the assets of Stancil Bayner in the hands of the defendant; that the slaves not being assets of Stancil Bayner, nor in the hands of his administrator, were not subject to that execution; that if Cox or any other creditor wished to reach those slaves, they should declare against the plaintiff as executor in his own wrong of Stancil Bayner, when the defendant might show that he had fully administered (440) by paying debts of an equal or higher dignity, to the value of the slaves, of which defense the present action would deprive him.

A verdict was returned for the plaintiff, and the defendant appealed. The action against a fraudulent vendee of goods as executor de son tort, when there is a rightful executor or administrator, is contrary to the analogy of the law of other cases, and is given only from necessity. It supposes that the creditor cannot obtain satisfaction from the rightful representative, and therefore gives this mode of impeaching the fraudulent conveyance, because there is no other, and without some the creditor would be entirely defeated. I do not mean that the creditor must show that he has first sued the true executor, and has been unable to fix him with assets. He may sue the fraudulent grantee first, but then he runs the risk of losing his suit, because the conveyance was not fraudulent, the donor or vendor not being indebted at the time of his conveyance, or not to an extent that could reasonably impeach his gift as being made with a view of defeating an existing debt, or one that he was about to contract. Where, therefore, there are assets in the hands of the creditor, there is neither a necessity that the creditor should, nor a probability that he will, sue the donee. And where the executor has been sued and fixed with assets, there seems to be no reason for allowing the action against the donee at all, for there is no necessity for it. The creditor obtains satisfaction without, and the deed which is good between the parties injures nobody, for the goods conveyed to the donee could not be chargeable to the executor as assets, and therefore those found are exclusive of those goods. Much more does it seem to be proper that upon such a judgment against the executor the goods of the donee should not be taken in execution. The verdict shows that there are other assets in the proper hands to satisfy the (441) judgment. And I cannot conceive a motive for this proceeding, unless it was a contrivance between Cox and Robertson for the latter to confess assets, when he had none, in order to defeat the conveyance to the plaintiff, and deprive him of the property, without first trying the question of title. Besides, as the judge properly said in the Superior Court, there is another reason for trying that question directly in a suit against the donee, which is that he may have paid the value to other creditors and ought to be allowed for it. It seems to me that to sustain the proceeding would be to call forth actual fraud, to counteract one that was only probable, or merely alleged without foundation in fact. It would cause many administrations to be taken out, for no other reason than that of putting one claiming under a conveyance to the disadvantage of being deprived of property without a trial first had — of being a plaintiff instead of a defendant.

PER CURIAM. Judgment affirmed.

Cited: Grant v. Hughes, 82 N.C. 220.