Johnston v. Malcom

• Decision Date: 31 December 1860
• Citation: 6 Jones 120,59 N.C. 120
• Court: North Carolina Supreme Court
• Parties: SAMUEL JOHNSTON v. H. C. MALCOM AND WIFE AND ANOTHER.

6 Jones Eq. 120

59 N.C. 120

SAMUEL JOHNSTON

v.H. C. MALCOM AND WIFE AND ANOTHER.

Supreme Court of North Carolina.

December Term, 1860.

A deed combining the two characters of a deed of trust to secure creditors, and a deed of settlement in trust for a wife and children, may operate and have effect in both characters, provided it has been duly proved and registered.

A deed of settlement, in trust for a wife and children, proved and registered three years after the date of its execution, was held to be valid as against creditors, whose debts were contracted after such registration.

CAUSE removed from the Court of Equity of Cabarrus county.

Samuel N. Black, on the 12th of December, 1849, conveyed, by deed, to Hugh McAulay and his heirs, two tracts of land and twelve slaves, in trust, to secure all his creditors, (naming them and the amount of their debts); the deed then proceeds: “and whereas, the said S. N. Black has, unfortunately, contracted the habit of intemperance, so much so, that he is frequently unqualified, properly to discharge and manage his affairs, and being desirous to secure a good and respectable living for his wife and children, as he received a large share of his property by his wife, it is, therefore, understood, stipulated and agreed,” &c., and then gives her the sole and separate use in all the said property, not required in the payment of the trustor's debts, and then limits the remainder to his son, the defendant, Calvin, and any other child he might have by their marriage, with certain contingent limitations, in the case of her death, and that of Calvin.

This deed was first proved before the clerk of Cabarrus county court, on 2nd day of January, 1850, and was shortly afterwards registered.

Afterwards, at April Term, 1853, of Cabarrus county court, it was proved in open court by the subscribing witness, and was ordered to be registered, and was registered, on the 8th of June, 1853. Previous to this time, all the debts, owing by Samuel N. Black, had been paid off. On the 28th of August, Black bought of the plaintiff, Samuel Johnston, a negro woman slave and two small children, at $775, and the said Samuel N. Black, his wife, the said Judith E., both signed a note for the price of the slaves, she negotiating and conducting the whole trade. Suit was afterwards brought against Black on this note, and he dying in 1853, it was continned against his executrix, the said Judith, and a verdict and judgment taken against her on the pleas then in issue. Afterwards, on a sci. fa. against her, to show cause why she should not pay this judgment out of the assets of Samuel N. Black's estate, in her hands, she pleaded fully administered and no assets, which pleas were found in her favor. Judith Black has since married the defendant, Malcom, and this bill is brought against them, and against her, as executrix, and against the trustee, McAulay, and Calvin M. Black, the only child and tenant in remainder, under the said deed, seeking to set aside the deed of trust as to the settlement to the feme defendant and her son, on the ground, it could not operate in the double aspect of a deed, in trust, for creditors, and a deed of settlement for the sole and separate use of the wife and her children; and insisting furthermore,...