Hoke v. Henderson

• Decision Date: 30 June 1831
• Court: North Carolina Supreme Court
• Parties: DEN EX DEM. OF JOHN HOKE v. LAWSON HENDERSON.

14 N.C. 12

DEN EX DEM. OF JOHN HOKE

v.LAWSON HENDERSON.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM. 1831

1. Where a purchaser of land under an execution, against a fraudulent vendor, neglected to take his deed from the sheriff, and before its delivery the fraudulent vendee entered into recognizance to the State: it was held that though between the State and a subject there is no priority obtained by the latter, from the relation of his execution, when they are pursuing the estate of a common debtor, yet as the land was primarily liable to the creditor of the vendor, the prerogative of the State did not operate, and that the sheriff's deed related to the sale.

2. A recognizance is a specific lien, which is not lost by suing out a fi. fa.

3. The cases of Peterson v. Williamson, 13 N. C., 326; Burton v. Murphey, 6 N. C., 339, and State v. Magniss, 2 N. C., 99, approved by RUFFIN, J.

4. A conveyance, fraudulent as to one creditor, is void as to all creditors.

5. A fraudulent deed is inoperative when offered as color of title, as well as when offered as title itself.

6. But after a sale under a creditor's execution, it is color of title against the purchaser.

7. The statute 13 Elizabeth, being intended to protect creditors, a bona fide purchaser from a fraudulent vendee has no title against the creditors of the vendor.

8. But the 27 Elizabeth, being intended for the benefit of purchasers, the first bona fide purchaser, whether from the fraudulent vendor or vendee, is within its operation.

9. A sheriff's deed is nothing but the execution of a power, and relates back to the power itself.

10. There is no relation against the State, between executions in its favor and that of a subject. The first has a preference, unless the debtor's goods have been actually sold under the process of the subject before that of the State is delivered.

EJECTMENT, in which both parties claimed under Robert Wier.

The lessor of the plaintiff produced a judgment in favor of John Wier against Robert Wier, which was entered up at the Fall Term, 1821, of LINCOLN Superior Court, executions upon which regularly issueduntil the Fall Term, 1822, when the lessor of plaintiff purchased, but did not take a deed from the sheriff until 26 April, 1827.

The lessor of the plaintiff also claimed title under two other sheriff's sales, made upon executions in favor of one Wilson and one Fulenwider, which it is unnecessary to notice further.

The defendant deduced his title as follows:

1. By a deed from Robert Wier to his son Joseph Wier, dated 6 March, 1809.

2. By proof of Joseph Wier's possession from the date of that deed until November, 1825.

3. He produced the record of a recognizance to the State, entered into by Joseph Wier, at the Spring Term, 1826, of Lincoln Superior Court, which was forfeited at the ensuing term, when process issued, and final judgment was afterwards entered in favor of the State; a fi. fa. issued on this judgment, and the defendant purchased in November, 1827.

It was in proof that in March, 1809, the date of the deed from Robert to Joseph, a suit was pending in Orange Superior Court, at the instance of one Robertson, against Robert Wier for a malicious prosecution, in which final judgment was afterwards obtained for $500, and an execution upon which was satisfied. It was also proved that Robert Wier lived on the land with his son Joseph.

His Honor, Daniel, J., charged the jury that as the lessor of the plaintiff claimed under a judgment in favor of John Wier, a creditor of Robert, at the time of the conveyance by Robert to Joseph, in March, 1809, they ought to inquire whether that conveyance was made to hinder, delay or defraud the creditors of Robert Wier—that it was unnecessary to inquire whether Robertson was a creditor within the meaning of 13 Elizabeth, because the lessor of the plaintiff did not claim under him—that if they should think the deed of Robert to Joseph was fraudulent as to John Wier, then they should find for the lessor of the plaintiff, unless the possession of Joseph Wier had ripened his defective title into a good one, and barred the entry of the lessor of theplaintiff; that under the Act of 1715, a fraudulent deed was color of title, and that if Joseph Wier continued in possession for the space of seven years, holding the land adversely to all the world, the lessor of the plaintiff would be barred by that act.

A verdict was returned for the defendant, and the lessor of the plaintiff appealed.

RUFFIN, J. The first position of the judge of the Superior Court, that it was immaterial to inquire whether the conveyance of Robert Wier to his son Joseph Wier was intended to defraud Robertson, since neither party claimed under him, is contrary to what I have always considered the law, and contrary to the authorities. I conceive that a conveyance in fraud of one creditor is void as to all creditors. It is upon this foundation that what are called fishing bills are filed in equity, to find out a creditor at the time of the conveyance, and to bringthe whole fund into subjection to general creditors, including subsequent creditors, and a fortiori other creditors at the time. Lush v. Wilkinson, 5 Ves., 384; Taylor v. Jones, 2 Atk., 600.

This Court has likewise the misfortune to differ from the court below upon the next instruction given to the jury. The case of Peterson v. Williamson, 13 N. C., 326, and Pickett v. Pickett, ante, 6, establish that the possession of a fraudulent grantee does not bar a creditor under the statute of limitations. The title is void to all intents, and this extends to the deed when operating as color of title, as well as when offered as title itself. It will inure under the statute against the purchaser under the creditor's execution, but not before. For these reasons the judgment below must be reversed, unless the record shows that at all events the defendant hath a better title, and must obtain a verdict upon a second trial.

The counsel for the defendant, admitting that he could not support the charge of the court, has insisted here that the defendant has the better right. He founds his argument on this state of facts: That the lessor of the plaintiff, although he purchased under John Wier's execution against Robert Wier, in October, 1822, obtained his deed on 26 April, 1827, and that Joseph Wier being in possession, entered into recognizance to the State in April, 1826, on which execution afterwards issued, under which the defendant purchased 22 October, 1827, and took a sheriff's deed in November following. It is insisted, in the first place, that the State, by force of the recognizance, is a purchaser from Joseph Wier, within our statute against fraudulent conveyances; and that the true construction of that statute, since the proviso is adopted from the 27 Eliz. instead of 13 Eliz., is that the first bona fide purchaser, whether from the grantor or grantee, has a good title; and also, that a like purchaser from the grantee is to be preferred to a creditor ofthe grantor. This last position is one which requires to be established by very clear reasoning before it can be adopted. Where creditors are the peculiar objects of the protection of a statute, which makes an act done to their injury void as against them, it seems difficult to suppose that any subsequent occurrences can set it up again, contrary to the object and express words of the statute. Under the other statute, purchasers only are within the purview, and wherever a purchaser appears, whether from the grantor or grantee, there is a person for whose benefit the statute was designed, and can operate. In the case of creditors, those of the grantor alone are within the purview. Has the act been ever construed to set up a fraudulent conveyance for the benefit...