Hawkins v. Alston

• Decision Date: 31 December 1845
• Citation: 4 Ired.Eq. 137,39 N.C. 137
• Court: North Carolina Supreme Court
• Parties: JAMES B. HAWKINS v. MICAJAH T. J. ALSTON et al.

4 Ired.Eq. 137

39 N.C. 137

JAMES B. HAWKINS

v.MICAJAH T. J. ALSTON et al.

Supreme Court of North Carolina.

December Term, 1845.

When property is conveyed by a deed of trust to satisfy certain alleged debts, and the parties stand in a near relation to each other, as father and son, or brothers, and the deed is impeached for fraud, it is incumbent on the parties to offer something more than the naked bond of the one to the other, as evidence of the alleged indebtedness, especially when the bond is followed, immediately after its execution, by the deed of trust.

And more especially will the Court, when a bill is filed by a creditor to set aside such conveyance, refuse to admit the validity of the bond so attempted to be secured, when the parties, being particularly interrogated, decline or refuse to set forth, fully and sufficiently, what was the consideration of the bond.

A bond may be voluntary, and such an one, though binding between the parties, cannot stand before other debts arising out of contracts for value.

Sales by execution must be made before the return of the writ, without respect to price, because the mandate of the writ is peremptory; but the obligations of a trustee are not precisely like those of a Sheriff. A trustee, under a deed of trust conveying property for the purpose of a sale to pay debts, is charged with the interests of both parties, and ought not, except under very special circumstances, to sell at an enormous sacrifice.

Cause removed from the Court of Equity of Warren County, at the Fall Term, 1845.

The case as exhibited by the pleadings and process, was as follows:

On the 31st day of January, 1843, the defendant, Micajah T. J. Alston, by a deed, to which he and the defendants, Spencer H. Alston and Christopher B. Allen were parties, conveyed to the said Allen all his property, real and personal, consisting of eleven slaves, which he owned absolutely and in severalty, of a negro woman named Caroline, of whom the said Micajah owned three undivided fourths, and the said Allen owned the other fourth, and of three other slaves, being a woman and her two children, which the said Micajah owned for the term of his life: The said effects conveyed, consisted further of all the said Micajah's household and kitchen furniture, namely, 4 beds, bedsteads and furniture, a cradle and cradle bed, 2 tables, 1 press, 1 dozen chairs, looking glass, dishes, plates, knives and forks, cups and saucers, pots, pans, and ovens, and six old trunks; also, 3 head of horses, 8 head of cattle, 1 waggon, corn and fodder, 4 cows, and 21 pigs, and also the plantation on which Micajah lived, which he had leased for the year 1843, and a negro boy whom he had hired for the same period, and about 1,200 or 1,500 Ibs. of bacon: upon trust to secure and pay certain debts therein recited to be owing from the said Micajah to the said Spencer, that is to say, one debt of $284 47, due by bond dated the 20th of July, 1841; one other of $54 34, due by bond bearing date the 15th of December, 1842; one other debt of $1,475 60, by bond bearing date the 30th day of January, 1843, and payable one day after date; and one other of $408, or thereabouts, besides interest, due on a bond, given by the said Micajah as principal and Spencer as surety, to John H. Alston, which had then been due about a year; with power and directions to the trustee, in case Micajah should fail to pay all those debts on or before the 1st day of March, 1843, at the request of Spencer, to sell the property to the highest bidder for ready money, having first advertised the time and place of sale fourteen days, and out of the proceeds of sale discharge the expenses and debts, and then pay the surplus to Micajah or his order. Spencer H. Alston is the brother of Micajah and Allen his brother-in-law.

At the time of making the deed, the defendant, Micajah, was indebted to the plaintiff, Hawkins, on his bond, then due, for $500, the price of land sold him; on which the plaintiff instituted suit, in which he recovered judgment in October, 1843, for the principal sum, and $36 for interest, besides costs. The plaintiff then issued a fieri facias, on which the Sheriff returned nulla bona to April, 1844; and thereupon, the plaintiff filed this bill against the said Micajah and Spencer, and the said Allen, and therein states that he cannot obtain satisfaction of any part of his debt, unless it be out of the effects so owned by Micajah and conveyed to Allen, and charges that the said conveyance was intended to delay and hinder him of the recovery of his debt, and prays that the same may be declared fraudulent and void against him, and that satisfaction may be decreed to him out of the property, or out of the proceeds or value thereof in the hands of Allen and Spencer H. Alston. The bill charges, that the value of the property conveyed was more than sufficient to pay all the just debts of the said Micajah, if fairly disposed of; but that Micajah declared, that he would never pay the debt to the plaintiff, and he executed the deed in question with the express intention to defeat the plaintiff, and upon a contrivance between the three parties to it to encumber and cover all Micajah's property with that view: And, as evidence thereof, the bill further charges, that the debts mentioned in the deed of trust were not due from Micajah to his brother Spencer, or, if any part of them was due, it did not exceed one half the amount therein mentioned: And, furthermore, that in a short time after the deed was made, namely, on the 10th of April, 1843, while the plaintiff was prosecuting his suit, the defendants proceeded to make a pretended sale of the property conveyed, at the residence of Micajah, in the country, without due notice, and when but few persons were present; and that, at the sale, the defendant, Spencer, purchased all the negroes and the other property without competition, and for very low prices, much below the true value, and not amounting to the debts recited in the deed. The bill charges, that the few persons, who were present at the sale, were induced not to bid by the belief, that the sale was a matter of family arrangement, and that such belief was produced by the contrivance and conduct of the defendants or some of them; and that in fact the defendant, Spencer, having no bid against him, purchased at his own prices, not exceeding one third of the value of the property, and that, notwithstanding such ruinous sacrifices, the said Allen did not suspend the sale, nor did the said Micajah request him to do so, but the sale proceeded upon a previous design of those parties, until the said Spencer bought every thing in, upon the terms mentioned. The bill further charges, that the purchases of the defendant, Spencer, were intended for the benefit of his brother Micajah and upon a secret trust for him, while the property should, at the same time, be covered from the claims of the plaintiff and his other creditors; and that, in fact, all the property or nearly all of it continued in the possession and enjoyment of the said Micajah after the sale as before, during the year 1843, and that then the defendants Spencer and Micajah removed the slaves out of this State to parts unknown, and the said Micajah was preparing to remove himself and his family, and settling where the slaves had been carried. The bill further charges, that, if the said Spencer did not purchase wholly in trust for Micajah, yet that he did so, as to all the property that might remain after Spencer should, by re-sales of part of it, or otherwise, be satisfied for the debt really due to him, if any; and that he has been thus satisfied and yet holds slaves, money and other things in trust for Micajah, to a greater value than the principal money, interest, and costs due to the plaintiffs. The bill then specially interrogates the defendants as to the several matters charged, and, particularly, what debts Micajah owed Spencer, when and how contracted, and upon what considerations respectively: why Micajah conveyed so much property, being all he had, to secure the debt, if any, to his brother, when much less than half of it was of value sufficient, if fairly sold, to pay the debts mentioned in the deed, even if the said debts were all just: what was the value of the several slaves and other property, what the said Spencer gave for them, whether the prices were not less than half the values, and how it happened that he was able to purchase at such a great under value all the slaves and other effects: why Allen, the trustee, continued the sale, when he discovered the property was selling so greatly below its value: whether the sale was thus continued with the acquiescence of Micajah, or whether he made request to his brother or the trustee to defer the sale until better prices could be had: And whether, in fine, it was not intended, that Micajah should still have the enjoyment of the property purchased by his brother, or some part of it, and whether the purchase was not for the benefit of Micajah, either in whole or in part.

The defendants answered together. Allen, the trustee, states that he had no interest in the subject matter of the controversy, and that he was merely trustee; that he supposed the debts mentioned in the deed to be true debts, and that, after due advertisement at several public places, he made the sale, for the purpose of satisfying those debts, upon the terms prescribed in the deed. All the defendants state that it was conducted in the usual manner of sales to the highest bidder for ready money, and fairly, and without any attempt by any or either of them to prevent competition or induce other persons not to bid. They annex to their answer an account of the sales of the property, from which it appears that the defendant Spencer purchased every thing that was sold, at prices, which amounted in the whole, to the sum of $1,740 50. The price of a woman Hester and her child was,...