Everett v. Raby

• Decision Date: 16 December 1889
• Citation: 10 S.E. 526,104 N.C. 479
• Parties: EVERETT et al. v. RABY.
• Court: North Carolina Supreme Court

10 S.E. 526

104 N.C. 479

EVERETT et al. v. RABY.

Supreme Court of North Carolina

December 16, 1889

Appeal from superior court, Swain county; CLARK, Judge.

Action to set aside a deed for fraud as against creditors. Plaintiff took a judgment by default, final under Code N.C. § 385. Defendant appeals.

Where a party pays the purchase money of land, and takes the conveyance to a third person, the land is not the subject of a levy and sale under an execution by his creditors, even though the transaction was fraudulent and intended to protect the land from the claims of creditors.

F. C Fisher, for appellant.

A. M Fry, for appellee.

SHEPHERD J.

The complaint alleges that J. B. Raby purchased and paid for the land described in the complaint, but for the purpose of defrauding his creditors procured the title to be made to his father, the defendant. Judgments were obtained against the said J. B. Raby, and under them executions issued, and were levied upon the land. The plaintiff purchased at a sale under these executions, and brings this action for the possession, and also to have the defendant declared a trustee for his benefit. No answer was filed, and judgment was rendered in accordance with the prayer of the complaint.

It is hardly necessary to cite authority to show that the interest of J. B. Raby could not be sold under execution. The distinction between an estate in equity and a mere right in equity in this respect, is well stated in Hinsdale v Thornton, 75 N.C. 382. In this case, PEARSON, C.J., says: "When one has an estate in equity, viz., a trust-estate, which enables him to call for the legal title without further condition, save the proof of the facts which establish his estate, this trust-estate is made the subject of sale underfi. fa. But where one has only a right in equity to convert the holder of the legal estate into a trustee, and call for a conveyance, the idea that this is a trust-estate, subject to sale under fi. fa., is new to us." In the present case the judgment debtor did not have even a right in equity, as it is alleged that the trust was infected with fraud; in which case the court would not act at the instance of either party. Page v. Goodman, 8 Ired. Eq. 16.

There can be no question as to the sale being void, and that the remedy of the creditors is an action, in the nature of a bill in equity, to subject the land to the payment of their debts. Jimmerson v. Duncan, 3...