E. P. Tabb & Co. v. Williams

• Decision Date: 30 June 1859
• Court: North Carolina Supreme Court
• Parties: E. P. TABB & COMPANY v. JOHN WILLIAMS AND WIFE AND ANOTHER.

4 Jones Eq. 352

57 N.C. 352

E. P. TABB & COMPANY

v.JOHN WILLIAMS AND WIFE AND ANOTHER.

Supreme Court of North Carolina.

June Term, 1859.

A bill was brought to subject equitable property to the payment of a judgment at law, in which it was alleged that the defendant, in that judgment, was insolvent, that he had no property that could be reached by an execution at law, and that executions, on other judgments against him, had been returned nulla bona, to which the defendant demurred; it was Held not necessary to show that an execution had issued on the judgment at law, and been returned nulla bona.

A lis pendens constitutes a lien on equitable property, in a case where it can be properly sought in this Court, and it is not necessary to restrain the holder of such property from paying it to the cestui que trust, (he being a party,) for the Court will make all proper orders for the protection of the fund.

CAUSE removed from the Court of Equity of Bertie.

The plaintiffs alleged in their bill, that the defendant, John Williams, became indebted to them in the sum of about $258, and that at November Term, 1858, of Bertie County Court, they obtained judgment for the amount; that shortly before the rendition of their judgment, the defendant had, by absolute conveyances, by deeds of trust, and executions in the hands of officers, been stripped of every species of property that could be reached by execution, and that several fi. fas. issuing on other judgments, had been returned by the officers holding them, nulla bona, and that he held himself out as largely insolvent; that by a certain deed of trust and marriage settlement, dated 2nd of January, 1855, executed by the said Williams and his intended wife, Rachel, (then Rachel Thompson) to the defendant Beasley, as trustee, the incomes of certain lands, slaves and other personal property, therein described and set forth, was secured to the said Williams, which he fraudulently endeavors to conceal, and to hinder the plaintiffs from having satisfaction therefrom. The prayer of the bill is for a discovery, and that the plaintiffs may have satisfaction out of the fund above mentioned.

The defendant Williams demurred generally. The defendant Beasley demurred specially, because, that the bill does not pray for an injunction to restrain him from paying over the income to the said Williams.

The cause was set down for argument on the demurrers and sent to this Court.

Winston, Jr., for the plaintiffs .

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