Mebane v. Layton

• Decision Date: 28 February 1882
• Citation: 86 N.C. 571
• Court: North Carolina Supreme Court
• Parties: W. M. MEBANE and others v. ALFRED LAYTON and others.

86 N.C. 571

W. M. MEBANE and others

v.ALFRED LAYTON and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at January Special Term, 1882, of GUILFORD Superior Court, before Gudger, J.

The plaintiffs, suing for themselves and other creditors of the defendant, Alfred Layton, allege that he is indebted to the plaintiff, Mebane, by two justice's judgments, one for the sum of $11.85 and costs rendered upon an open account contracted in 1866; and the other for $20.72 and costs, both of which have been “docketed in the superior court;” and also by a note for $37.43 due since September 1863; that he is also indebted to the plaintiff, Coble, in his own right by bond for $110.00 due the 6th of October, 1875, and to him as administrator of one Goley in three several justice's judgments, one for $2.75; one for $2.17; and the third for $4.70, and costs on each--all of which were rendered upon debts contracted in February, 1867, and all likewise “docketed in the superior court;” and that he is indebted to other persons, and in other amounts, unknown to plaintiffs; that being thus indebted, and insolvent, the said defendant in July, 1866, contracted with one Brothers, for the purchase of a tract of land at the price of $200, for which he paid the entire purchase money; but, for the purpose of defrauding his said creditors, procured the deed for the same to be made to his mother, the defendant Lucinda, who afterwards and without other consideration conveyed it to his (defendant's) wife, the defendant Rebecca.

Thereupon they insist upon their right to follow his funds in the said land, and that the same be sold for the satisfaction of their demands, and those of his other creditors.

The defendants demur to the complaint upon the following grounds:

1. For misjoinder--In that the plaintiffs have separate and distinct interests, and sue upon distinct claims, which should not be united in the same action.

2. That as it appears from the complaint, each plaintiff embraces in his demands against the defendant, a claim that has not been reduced to judgment, and for an amount that falls exclusively within the jurisdiction of a justice of the peace.

3. That it does not appear that the alleged judgments have been docketed in the superior court of Guilford county.

4. For that it does not appear that executions have been issued under such judgments and returned nulla bona.

5. For that it is not averred that the defendant, Layton, has no other property or effects, sufficient to satisfy the plaintiffs' debts, the allegation of his insolvency being insufficient to support this action.

6. For that the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was sustained, and the plaintiffs appealed.

Messrs. Scott & Caldwell, for plaintiffs .

Mr. John N. Staples, for defendants .

RUFFIN, J.

By their demurrer, the defendants admit the demands of the plaintiffs; the existence of other creditors and claims against the debtor; his insolvency; and his covinous attempt to secrete his effects, and, with the coöperation of his mother and wife, to secure them for his own ease and comfort. It is difficult then to conceive of anything more that can be needed to entitle the plaintiffs to the relief they seek at the hands of a court of equity.

If the two active creditors had sued for their own benefit only, a simple allegation of the insolvency of the debtor might have been, and in fact would have been deemed insufficient to support their action; for though thus insolvent, he might still have possessed tangible property liable to be taken under execution, sufficient to satisfy their demands, and thus render a resort to the court of equity unnecessary. But suing as they do for the benefit of every creditor alike, an allegation of absolute insolvency, as existing at the date of the attempted perversion of his property and as...