Roberts v. Lewald

• Decision Date: 24 November 1890
• Citation: 12 S.E. 279,107 N.C. 305
• Parties: ROBERTS et al. v. LEWALD et al.
• Court: North Carolina Supreme Court

12 S.E. 279

107 N.C. 305

ROBERTS et al. v. LEWALD et al.

Supreme Court of North Carolina

November 24, 1890

Appeal from superior court, Cumberland county; BYNUM, Judge.

A creditors' bill alleged an indebtedness to plaintiff that notes were given therefor for the purpose of hindering plaintiff in bringing action and to enable the debtor to execute a deed of trust, and a sale which the plaintiff seeks to restrain. The evidence on the application for injunction tended to prove fraud, and it appeared that a sale of the property in controversy would promote the interest of the parties, and that the trustee was solvent and capable. Held that an injunction should be granted and the trustee restrained from disposing of the fund derived from the sale pending the action.

H. McD. Robinson, H. L. Cook, N. A. Sinclair, and A. W. Haywood, for appellants.

N. W Ray and T. H. Sutton, for appellees.

MERRIMON C.J.

This action is brought by the plaintiffs, in behalf of themselves and all other creditors of the defendant Lewald, to obtain judgment against him for certain debts specified in the complaint, and to have a deed of trust, executed by him to the defendant Nimocks, conveying to the latter all his property, in trust, to be sold, and the proceeds of sale applied to the payment of certain debts mentioned in the deed, declared and adjudged fraudulent and void; to have the property, so fraudulently conveyed, sold, and the proceeds of such sale applied to the payment of the judgment of the plaintiffs, and the judgments of other like creditors who may join in this action, etc. Among other things, it is alleged in the complaint "that, on the 8th day of July, 1889 plaintiffs, Roberts & Hoge, sold and delivered to the defendant K. Lewald a bill of boots and shoes, amounting, in the aggregate, to the sum of twelve hundred and forty-seven dollars, for which said K. Lewald executed to plaintiffs, on the 16th day of November, 1889, his three several promissory notes, dated October 15, 1889, or thereabout, the first note for $415.67, and payable January 15 to 18, 1890; the second note for $415.67, to be due February 15 to 18, 1890, and the third note, for $415.66, to be due March 15 to 18, 1890, and all bearing interest from maturity at the rate of six per centum per annum. That plaintiffs believe, and so aver, that at the time of the purchase of the goods from affiant's firm, mentioned in paragraph 3 of this complaint, and at the time of the execution of the said promissory notes, and at all times since, said K. Lewald intended to defraud plaintiffs, and, in execution of his said fraudulent intent, said K. Lewald induced plaintiffs to accept said notes, so as to make the debt fall due after the time he intended to make his said fraudulent deed of trust; and plaintiffs believe, and so charge, that the said deed of trust to R. M. Nimocks was made with the fraudulent intent and purpose of hindering, delaying, and defrauding plaintiffs, and other creditors of the said K. Lewald. That, on the 14th day of December, 1889, the defendant K. Lewald executed to the defendant R. M. Nimocks a deed of trust, conveying to him all of the boots, shoes, clothing, dry goods, and all other articles of merchandise, of every description, contained in the store-house on Hay street in the town of Fayetteville, N. C., where he was doing business as a merchant, together with all other property of every description owned by the said K. Lewald, except the exemptions allowed by law." The complaint further alleges at great length, and much in detail, facts and circumstances which, if proven to be true, render the deed of trust fraudulent and void as to the plaintiffs, and many other creditors. It is alleged that the property is insufficient to pay the debts specified in the deed; that the defendant trustee is unfit to administer the trust; that he connives at and helps the defendant Lewald in his fraudulent schemes and purposes, etc. The defendants in their answers admit some of the material facts, deny others, and especially deny the alleged fraud, and the fraudulent character of the deed of trust, and allege that the defendant trustee is in all respects a fit and proper person to be trustee; that he is entirely solvent and responsible; that the sale of the goods should not be delayed, etc. At chambers, on the 30th day of December, 1889, a judge granted a restraining order, of which the following is the material part: "On reading the foregoing affidavit, it is ordered that the defendant R. M. Nimocks show cause before the judge holding the January term of the superior court at the court-house in Fayetteville, on Monday, the 20th day of January, 1890, at 12 M., why the injunction prayed for should not be granted, and in the mean time the said defendant, his agents and servants, are restrained from disposing of any of the assets which have or which may hereafter come into the hands of said Nimocks, as trustee, under the deed of assignment made by said Lewald to said Nimocks, and referred to in the affidavits." Afterwards on the 4th of January, 1890, this order was modified as follows: "It is further considered that the order heretofore made by me be modified so as to permit the assignee, R. M. Nimocks, to sell and dispose of the goods and effects assigned to him by the deed of trust referred to in the complaint, and he is restrained from disposing of the fund arising from...