Bryan & Co. v. Spruill
| Decision Date | 30 June 1858 |
| Citation | 57 N.C. 27,4 Jones 27 |
| Court | North Carolina Supreme Court |
| Parties | BRYAN & CO. v. B. J. SPRUILL and others. |
A husband has a right to assign a legacy, or a distributive share, due to his wife, for the purpose of paying his debts, and if the assignee can reduce it into possession during the life-time of the husband, the wife, surviving, cannot recover it.
An allegation that a deed was fraudulent, without setting out how, or on what account, or in what particular, is not a sufficient one, and the admission of such allegation, by filing a demurrer, does not sustain a bill otherwise deficient in equity.
CAUSE transmitted from the Court of Equity of Washington county.
The bill charges that Benjamin J. Spruill was indebted to the plaintiffs, in the sum of $258,43, for which they sued and recovered a judgment in the County Court of Washington; that execution issued on said judgment, and was returned unsatisfied, except as to a small amount, and that the said Spruill is insolvent; that the wife of the defendant Spruill, the defendant Mehetable, by the death of a sister, Harriet Ann Fesenden, intestate, became entitled to one-third part of the personal estate of the said Harriet Ann, and that these defendants, with the other distributees, had filed a petition in the County Court of Washington, and had obtained a decree for the sale of certain slaves for a partition among them; that plaintiffs had had the husband's interest in such slaves levied on; that with a view to defraud the plaintiffs, the said B. J. Spruill had conveyed this distributive share to the defendant Charles Latham, by deed, bearing date, &c., a copy of which is annexed, and prayed to be taken as a part of the bill. The conveyance referred to is a deed of trust, to secure certain creditors therein mentioned, in proper form and duly proven.
The bill is for an injunction to stop the sale under the decree in the county court, and for a decree to have their execution satisfied out of this distributive share.
The defendants demurred. Joinder in demurrer, and the cause was set down for argument, and sent to this Court.
E. W. Jones, for the plaintiffs .
Heath, Winston, Jr., and H. A. Gilliam, for defendants .
It is settled that a husband has a right to assign a legacy, or distributive share, due to his wife, for the purpose of paying his debts, and if the assignee can reduce it into possession during the life of the husband, the surviving wife cannot recover it; ...
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...such averment, pronounce judgment. Kinder v. Macy, 7 Cal. 206; Catchings v. Manlove, 39 Miss. 667; Clay v. Dennis, 3 Ala. 375; Bryan v. Spruill, 4 Jones, Eq. 27 ; Story's Eq.Pl. § 251 a. A demurrer to such pleading is not a confession of the fraud; for a demurrer confesses only the matters ......
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Calloway v. Wyatt
...it may reasonably be inferred, fails to state a cause of action for deceit, and such defect may be taken advantage of by demurrer. Bryan v. Spruill, 57 N.C. 27.' It is not alleged in the complaint that the false representations were made by the defendant with intent to deceive the plaintiff......
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