Brown v. Long

• Decision Date: 31 December 1840
• Citation: 1 Ired.Eq. 190,36 Am.Dec. 43,36 N.C. 190
• Court: North Carolina Supreme Court
• Parties: GEORGE W. BROWN et al. v. JAMES J. LONG et al.

1 Ired.Eq. 190

36 N.C. 190

36 Am.Dec. 43

GEORGE W. BROWN et al.

v.JAMES J. LONG et al.

Supreme Court of North Carolina.

December Term, 1840.

Where a plaintiff obtains a judgment at law, which becomes dormant, it is not necessary to revive it in order to enable him to apply to a Court of Equity for its aid, in procuring satisfaction of the judgment.

It is generally necessary to issue an execution at law, before coming into this Court for its aid, 1st, because, where the object is to clear the title of property, alleged to be subject to execution, from incumbrances, &c., the execution must be issued, that it may create a lien on that specific property-- 2ndly, that it may appear, from the return of nulla bona, that the defendant has no property which can be reached by an execution at law. But no further execution is necessary where the defendant has been once taken on a ca. sa., and discharged under the insolvent debtor's law; and where he admits, in his answer to the bill, that he has nothing tangible by an execution, but only choses in action held in trust for him.

This case came originally before this Court upon demurrer, which was overruled. See 2 Dev. & Bat. Eq. 138. The cause was then remanded, and the defendants, Long, Hardie and Hargrove answered, and the other defendants let the bill be taken pro confesso against them, and set for hearing ex parte. Having been set for hearing in Rowan Court of Equity upon the bill, answers, judgment pro confesso, exhibits and interlocutory order, the case was, at the Fall Term, 1840, transmitted to this Court for a determination. The only ground upon which the defendant now resisted the plaintiff's recovery was, that the judgment at law of Campbell & Brown against Long, sought to be enforced by this bill, (see former case) were dormant at the time the bill was filed, and that Campbell's judgment is still so.

Iredell for the plaintiffs .

J. H. Bryan and Boyden for the defendants .

RUFFIN, Chief Justice.

It appears, upon the pleadings, that the plaintiff, Brown, gave to the plaintiff, Campbell, his bond with surety for the amount of the debt of Long, one of the defendants, to Campbell, for which Brown was Long's surety; and that thereupon Campbell assigned the judgment at law to the plaintiff Cowan, in trust for Brown. It is admitted, by the defendants who have answered, that Josiah Huie and Robert Huie were respectively indebted to Long by bonds in the sums mentioned in the bill, and that he, Long, endorsed the bonds to the defendants, Hardie and Hargrove, in trust for himself, and to enable them to collect the debts for his benefit. It is also admitted by them that the dofendant Long has no visible or tangible property. But Long states, in his answer, and such is the fact, that, at the filing of the bill, both the judgment obtained by Campbell and that obtained by Brown against Long, were dormant; and although, pending this suit, the latter has been revived, Campbell's judgment is still dormant; and, for these reasons, he insists that there can be no relief here in respect to either of the judgments.

An order was made by consent, in the Court of Equity of Rowan county, that the Master of that Court should collect the moneys due on the bonds of the Huie's, and hold the same subject to the decree of the Court; and the cause was set for hearing and sent to this Court.

But a single question arises in the present state of this case; which is, whether the plaintiffs are precluded from the relief to which they would otherwise be entitled, because the judgments at law were dormant, when the bill was filed, and one of them is yet so? Upon the consideration of it, our opinion is against the objection made by the defendants.

We agree that the creditor must shew himself to be so by judgment; for it is only after he has established his debt at law, that he can claim the interposition of this Court to aid him, either by making his execution at law effectual, or by giving him relief by decree in this Court, in the nature of an execution. Rambaut & al. vs. Mayfield & al., 1 Hawks, 85. But here the debts have been reduced to judgments, and thus their justice conclusively established. It is true no execution could regularly issue on them, while dormant. But even then there is not such a presumption of satisfaction as to render an execution, if issued, void. It is only irregular, and may be set aside at the instance of the party. Oxley vs. Mizle, 3 Murp. 250-- Dawson v. Shepherd, 4 Dev. 497. Much less can it be assumed, in this suit, that the...