Jackson v. Marshall's Adm'r & Devisee

• Decision Date: 31 July 1809
• Citation: Jackson v. Marshall's Adm'r & Devisee, 5 N.C. 323 (N.C. 1809)
• Court: North Carolina Supreme Court
• Parties: JACKSON v. MARSHALL'S ADMINISTRATOR AND DEVISEE.

5 N.C. 323

JACKSON

v.MARSHALL'S ADMINISTRATOR AND DEVISEE.

SUPREME COURT OF NORTH CAROLINA

JULY TERM, 1809.

Pending a suit against A as security of B, A, to defeat any recovery that might be made against him in said suit, conveys his property to C, by an absolute deed, purporting to be for a valuable consideration. And it was agreed between A and C, that C should reconvey the property to A whenever he should be requested. It appeared upon the trial of the suit against A that the debt claimed of him had been paid by B, for whom he was security, and judgment was rendered in favor of A, upon which he filed a bill to compel C to reconvey the property according to his agreement. Equity will not enforce this agreement, on account of its moral turpitude.

THE bill charged that Jackson, in order to the more convenient settlement of his estate at a future day, so as to answer the exigencies of his family, concluded to raise a trust in fee on his estate, and to make such divisions and provisions out of the same as a trust is capable of according to the rules of equity, and which an estate at common law is not. That to this end, he applied to one Benjamin Marshall, late of Halifax County, now deceased, and made known to him his designs, and requested him to permit complainant to make him a trustee for the said purposes; that Marshall consented thereto, and promised that he would, from time to time, make such conveyances as complainant should direct, and reconvey the property to complainant if ever requested to do so. That in pursuance of

this agreement, complainant, in May, 1801, by deed duly executed, conveyed to Marshall two tracts of land lying in Halifax County, and by another deed executed about the same time he conveyed to Marshall all his stock of cattle, horses, hogs, and all his other property, including negroes Hercules and Lydia. The bill charged that the conveyances were upon trust, for the benefit of the complainant, and that the said trust was declared by Marshall at and after the execution of the conveyances; that all the said property was by express agreement to be at complainant's disposal, and he was to take the profitsand proceeds thereof, and Marshall was to convey the same at any time, as complainant should direct; that although a consideration was expressed in the conveyances, none was ever paid by Marshall for the property. That Marshall had since died, having duly executed his last will, and therein devised the lands aforesaid to his son, Howell Marshall, and the other property he directed in his will to be sold and the proceeds divided amongst his other children; that Jeremiah Marshall had caused the will to be proved, and administration with the will annexed to be granted to him; that he and the said Howell Marshall denied the trusts aforesaid, and pretended that the conveyances aforesaid were intended by the parties to be absolute and subject to no secret trust. The bill prayed that they might be compelled to answer, and be decreed to reconvey the lands and other property to complainant.

To this bill Jeremiah Marshall, the administrator, put in his answer, and therein alleged that he had no personal knowledge of the transactions charged in the bill, but believed, from every information which he had been able to acquire, that the conveyances were intended by the parties to be absolute; that a considerable part of the purchase money had been paid by Benjamin Marshall, previous to his death, and that complainant held his bonds for the balance.

This cause coming on to be heard in the Court of Equity for Halifax District, sundry issues were submitted to a jury, who found that the conveyances mentioned in the bill were upon trusts, and not intended to be absolute; that they were made to defeat any recovery that might be made in a suit then pending in Halifax Superior Court against complainant, as security for one Cofield, in which suit the plaintiff failed to recover, it appearing that the debt was paid by Cofield before the institution of said suit. The jury also found that complainant, at the time of executing the said conveyances, wasindebted to one Burt, and also one Hilliard, to a small amount, but that those debts bore a small proportion to the

value of his estate, and that creditors were not intended to be defrauded by said conveyances or hindered or delayed thereby of the recovery of their debts.

The bill, answer and findings of the jury were sent to this Court for the opinion of the judges. This, with the preceding case of Vick v. Flowers, was argued by WRIGHT, J., delivered the following opinion as the opinion of the Court in both of the preceding cases:

It is rather a singular circumstance that claims such as the present bills set up are made at this day, and attempted to be enforced without the authority of a single adjudged caseto support them. That conveyances like those set forth, made under similar agreements, have before occurred, there can be little doubt; and it is equally certain that if these agreements had ever been considered as entitled to the assistance of a court of equity the diligence and industry of the complainant's counsel would have discovered the cases in which application to enforce them had been sustained, and relief granted. The silence of the books on the subject would seem of itself to afford strong presumptive evidence that the complainants are not entitled to the relief which they seek. But although such presumption exists, yet if they could have shown that under the influence of any of those principles which direct the decisions of our courts of equity they were entitled to relief, the Court would feel bound to grant it, notwithstanding it might seem to militate against the policy of the statutes which have been from time to time made for the protection and security of creditors. It is believed that so far from granting relief to the complainant, not only the statute against fraudulent conveyances, but every principle and rule which has been adopted and...