Barnawell v. Threadgill

• Citation: 3 Jones 50,56 N.C. 50
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1856
• Parties: BENJAMIN BARNAWELL and wife v. GIDEON B. THREADGILL and others.GIDEON B. THREADGILL and others v. BENJAMIN BARNAWELL and wife.

3 Jones Eq. 50

56 N.C. 50

BENJAMIN BARNAWELL and wife

v.GIDEON B. THREADGILL and others.GIDEON B. THREADGILL and others

v.BENJAMIN BARNAWELL and wife.

Supreme Court of North Carolina.

December Term, 1856.

Parties to a compromise must deal with each other upon an equal footing.

Where a party to a suit, with all the knowledge on his part, of the only doubtful matters in dispute, entered into an arrangement with the agent of the other party, by which the principal was to get not more than one-twentieth of his debt, and it was a part of the arrangement that it should be kept a secret from the principal's counsel and friends, it was Held not to be a compromise that would be supported in a Court of Equity.

Mere inadequacy of consideration will not defeat the compromise of a doubtful claim, when it is entered into fairly, and with deliberation; but where the parties were not in equal ignorance of their rights, and were not dealing on equal terms, inadequacy of price may fairly be relied on as proof that a party had been imposed on and defrauded.

A creditor may follow the assets in the hands of legatees and other persons claiming as volunteers, or fraudulent alienees of an unfaithful and insolvent executor. And such a volunteer is not protected by the fact, that the executor had sufficient assets to pay all the debts if he had not wasted them.

In a bill to follow assets fraudulently removed, as it does not proceed on the idea of punishing the defendant for a fraudulent removal of the assets, one who acted as a mere agent in running off and selling them, but who paid over the price to his employers, is not liable for the value of the property, but such a defendant must pay costs.

Where an executor qualified in 1841, and a creditor commenced a suit against him in that year, which pended until 1845, when he obtained a judgment, and at the following Spring Term of the Court of Equity, filed his bill against a legatee to follow a part of the assets, (slaves) which he had removed out of the State and sold, Held that the statute of limitations did not protect, notwithstanding he had had possession, with the assent of the executor, for more than three years.

Where a person, standing in a confidential relation to an intemperate executor, who has wasted the estate, is found in possession of a part of the assets, upon a suit by the creditor to follow such assets, it is incumbent on him to show that he purchased fairly and paid the price.

CAUSE removed from the Court of Equity of Anson county.

These cases were heard and considered together, and are sufficiently stated in the opinion of this Court.

Winston, Sr., and Ashe, for the plaintiffs in the former case, and for the defendants in the latter .

Bryan, Mendenhall and Dargan, for the defendants in the former case, and for the plaintiffs in the latter .

BATTLE, J.

The original bill was filed at the Fall Term, 1846, of the Court of Equity for Anson county, by Benjamin Barnawell and his wife, against Patrick B. Threadgill, (executor of Thomas Threadgill,) Gideon B. Threadgill, Thomas H. Threadgill, Wilson Allen, George Allen and Joseph W. Allen, in which was stated, substantially, the following case: Col. Thomas Threadgill died some time in the year 1836, leaving a will, which, after a caveat, was duly proved in 1841, and the defendant Patrick B. Threadgill, the executor therein named, was duly qualified, and took upon himself the burden of its execution. The plaintiffs, Benjamin Barnawell and his wife, commenced a suit in October, 1841, upon a bond given by the testator to the feme-plaintiff, who was his daughter, the trial of which was delayed until the Fall Term, 1845, of the Superior Court of law of Anson county, when they recovered a judgment for a large sum, to wit, $4950,83 and costs, the executor having admitted assets, and having, in truth, more than sufficient, in slaves and other property, to pay the said judgment. It was alleged that the defendants had previously, with the view of defeating the plaintiffs' expected recovery, combined together, and by fraud, procured an order from the County Court of Anson, at the instance of the executor, for a sale of some of the negroes belonging to the estate of his testator, under the pretence that the same was necessary for the payment of debts, and for distribution, and that the defendants, having great influence over the executor, who was a very intemperate man, by means of a sale, or pretended sale, got into their hands several of the slaves, and other assets, belonging to the estate of the testator. It was further alleged that, in expectation that the plaintiffs would obtain judgment in their suit at a special term of the Superior Court, which was appointed to be held for the county of Anson in May, 1845, the defendants, about that time, secretly carried off eighteen slaves belonging to the estate of the testator, to wit, Keziah, Tony, Beck, Charles, Smiley and child, Judy, Jinny, Franky and two children, Dinah, Edmund, Will, Laura, Rosanna, Mima and Polly, and sold them, or otherwise disposed of them, in the State of South Carolina. The prayer was that the defendants should, by an order of the Court, be compelled to bring back the said slaves, or to pay the judgment aforesaid, with costs.

The defendants severally filed their answers, in which they denied, each for himself, any combination or fraudulent purpose, to defeat the plaintiffs' judgment. They admitted that, at the death of the testator, Thomas Threadgill, the assets belonging to his estate, were amply sufficient for the payment of all his debts, (that of the plaintiffs included,) but that the assets were wasted by the executor, so that when the plaintiffs obtained their judgment, there was nothing wherewith to satisfy it. The defendant Gideon B. Threadgill stated, that at the sale, made by the executor in 1842, he bought and paid for three slaves, Keziah, Tony and Laura; that they were sold, at public auction, where many persons, able to buy, were present, and that he purchased fairly, and for a full price, and further, that he did not then know of the debt for which the plaintiffs obtained their judgment. He stated further, that he purchased Jinny, from the executor, at a private sale, but that she was afterwards levied on by Joseph White, the then sheriff of Anson county, and sold, when he became the purchaser at $450, which he paid to the said sheriff. That these were all the slaves he bought of the executor, and he sent them all to South Carolina, but not in the manner, nor for the purpose charged in the bill. He also sent with them the slaves Smiley and her three children, which had been levied upon by George D. Boggan, who had become sheriff of Anson, and that he sold these slaves for the sheriff, for a fair price, and paid him the money. He stated further, that another slave, named Charles, was carried to South Carolina and sold by Thomas H. Threadgill for Patrick B. Threadgill, and that the price of $500 was paid by the said Thomas, to Young H. Allen and Hull Threadgill, to whom the slave had been conveyed by the said Patrick, as an indemnity for their suretyship for him. This defendant stated further, that the defendant Wilson Allen was his agent in carrying off the slaves aforesaid; and he denied that he had any agency or connection with the other defendants in carrying off their slaves, or that he had any intention to defraud the plaintiffs, or any other persons, by sending off his own.

The defendant Thomas H. Threadgill stated, that the testator, who was his grand-father, had, in his life-time, given him a negro named Will, and to his father, Hull Threadgill, two negroes, named Edmund and Franky, and by his will had confirmed the gifts; that his father had had possession of the said slaves many years, and at the testator's death, the executor had assented to the bequests; that he, the defendant, had, at the time stated in the bill, carried off the slaves Will and Edmund, and sold the former for $562,50; that while he was in South Carolina, his brother, Joseph Threadgill, brought out two slaves, Franky and her child Harriet, belonging to his father. He insisted that he and his father had held the slaves aforesaid, adversely, for more than three years before the bill was filed, and he claimed the benefit of the statute of limitations. He denied that he had carried the slaves off to defeat the plaintiffs' recovery, but “to prevent being harrassed in the quiet possession of property,” to which he was advised he had a good right.

The defendant George Allen stated, that he was present when the slaves, mentioned in the answers of the other defendants, were carried off; that about ten days before that time, he had sent off into South Carolina, a little girl named Dinah, the child of the woman Franky, and sold her for $300; that the said girl had been put into his possession by Hull Threadgill, whose daughter he had married. He denied all combination and connection with the other defendants, and claimed the benefit of the statute of limitations.

The defendant Wilson Allen, in his answer, denied any other connection with the transaction, than as the agent of the defendant Gideon B. Threadgill, to carry off his slaves, for which he was paid $50; that he sold the slave Judy for $430,25, and paid the money to Young H. Allen, who had a deed of trust for her.

Joseph W. Allen, the remaining defendant, denied that he had any connection whatever with the transaction; that he had no interest in any of the slaves carried off; and that he, being near the place from which they were about to start, went, as a mere spectator, to see them, and did see them carried off.

These answers were filed at the Fall Term, 1846, when they were replied to by plaintiffs, and the parties proceeded to take their proofs.

Subsequently, George Allen died, and Wilson Allen, his administrator, was made a party, and filed an answer as such, at the Fall Term, 1847.

At the Spring...