Doe on Dem. of Hawkins v. Sneed

• Decision Date: 30 June 1824
• Citation: Doe on Dem. of Hawkins v. Sneed, 10 N.C. 149 (N.C. 1824)
• Court: North Carolina Supreme Court
• Parties: DOE ON DEM. OF HAWKINS v. SNEED & SNEED.—From Granville.

10 N.C. 149

DOE ON DEM. OF HAWKINS

v.SNEED & SNEED.—From Granville.

SUPREME COURT of NORTH CAROLINA

JUNE TERM, 1824

A., being much indebted, absconded; executions issued against his property at the instance of several creditors. Prior to the sale of the property, C., who was a creditor by bond, received from A. the sum of $300, to be applied in satisfaction of the claim of a judgment creditor, P., whose judgment was $357. C. failed to make the application as directed, but permitted the property levied on to be sold by the sheriff, and became himself the purchaser at the price of $800, and paid off the judgment of P. only, and afterwards conveyed to the lessors of the plaintiff. Between the time of C.'s purchase and the conveyance to plaintiff's lessors the property was sold under the executions of some of the other creditors, and defendants purchased. In an ejectment between the last purchasers and C.'s vendees, it was held that C.'s conduct was not fraudulent as to the creditors of A., and though, in equity. A. had a claim against C., and a reconveyance to A.'s creditors might, perhaps, be decreed, yet A.'s equitable lien was not such as was contemplated by the act of 1812, rendering lands held in trust liable to an execution against cestui que trust; and at all events, whatever might have been the conduct of C, the purchasers from him were bona fide purchasers, without knowledge of or participation in his breach of trust, and, therefore, should be protected.

EJECTMENT for house and lot, tried before Donnell, J. On the trial the defendants admitted themselves in possession of the premises mentioned in the declaration, and both parties claimed under William H. Clay, who, it was admitted, once had title to the premises.

The plaintiff deduced his title in the following manner: Absalom Yancey recovered a judgment in Granville County court, November session, 1819, against Clay for $785, with interest thereon from 4 April, 1819, till paid, and costs; on which a payment of $470 was made on 13 April, 1819, and on which the sum due in July, 1820, was $346.19, whereon a ft. fa. issued from February sessions, 1820, of said county court, and was returned to May sessions, 1820, levied on the premises in dispute. Samuel Parkhill and John Parkhill also, on 25 November, 1819, sued out an attachment against the estate of said Clay as an absconding debtor, returnable to Granville County court, February session, 1820, which was also levied on the premises in dispute, and due return thereof made to the county court, where, at May Session, 1820, the said S. and J. Parkhill recovered the sum of $327.95, with interest on $263.41, from 1 May, 1820, until paid, and costs, on which the amount due in July, 1820, was $357.90½. The plaintiff gave in evidence the records of the said judgments, and also that writs of venditioni exponas issued on each, from May sessions, 1820, of said court, and were delivered to the sheriff of Granville, who by virtue thereof sold the promises in dispute on 29 July, 1820, and Thomas Cooke became the purchaser, he being the highest bidder,

at $800, but satisfied Parkhill's execution only; and afterwards, viz., on 29 March, 1821, the sheriff made a deed to said Cooke therefor which has been duly proved and registered; and the plaintiff further deduced title to the premises in dispute by a deed of trust in fee, made by the said Cooke to the lessor of the plaintiff on 27 February, 1821, to secure the indorsers of the said Cooke in the banks to the amount of $3,000 or $4000, which deed included also all the other property of Cooke. No evidence was offered of any money having been paid by the lessor of the plaintiff to said Cooke, or of the debts mentioned in said deed as due to the banks, except the recital inthe said deed. The plaintiff also read in evidence to the jury a bond from William H. Clay to said Cooke, witnessed by John Green and dated 25 May, 1820, for $551.66, payable one day after date.

The defendants claimed title as follows: The said William H. Clay was indebted to Willie P. Mangum on 20 May, 1820, in the sum of $28, for which a warrant was brought before a justice of the peace in Granville County, who rendered judgment thereon, from which an appeal was taken to the next county court of Granville, to wit, August sessions, 1820, in which case, at the suceeding November sessions, 1820, judgment was given in favor of the said Mangum for his said debt and costs, and thereupon a fi. fa. issued, which was levied on the disputed premises by the sheriff on 4 December, 1820, and return thereof was made to February sessions, 1821, of said court, and thereupon a ...