Spencer v. Allen
| Decision Date | 31 December 1860 |
| Citation | 59 N.C. 17,6 Jones 17 |
| Court | North Carolina Supreme Court |
| Parties | SMITHERMAN & SPENCER v. HIRAM ALLEN AND OTHERS. |
Where a debtor conveyed all his property with an intent to defraud his creditors, and then left the State, it was held that a creditor could not maintain a suit, in equity, to have his debt satisfied out of the property, under the statute, Rev. Code, chap. 7, sec. 20, his remedy being at Law.
CAUSE removed from the Court of Equity of Montgomery county.
Hiram Allen, one of the defendants in this case, was indebted to the plaintiffs in the sum of $175.00, due by note and account; and the said Allen, in the month of September, 1859, was seized of a tract of land, in the county of Montgomery, and was also possessed of a valuable chattel property. Some time during that month, the defendant, Hiram, conveyed all his property to his brother, David Allen, and his brother-in-law, Martin Hunsucker, who are the other defendants in this suit, and then left the State.
The bill charges that this conveyance was intended to defraud creditors, and that there was a combination among the defendants for that purpose.
The prayer is for a discovery of the matters relating to this transaction, and that the payment of plaintiffs' debt may be decreed, according to the statute, Revised Code, chapter 7, section 20, against the defendants, and for general relief.--The defendants demurred to the bill, for the reason, that the plaintiffs had a remedy by an attachment, at law, and also for that the plaintiffs had not reduced their debt to a judgment. The cause being set for argument upon bill and demurrer, was transferred to this Court.
Mason and Jackson, for the plaintiffs .
McCorkle, for the defendants .
A debtor conveys all of his property with an intent to defraud his creditors, and then leaves the State. The question made by the pleading is, can a creditor maintain a bill to have his debt satisfied by what may be called, ““an attachment in equity,” under the provisions of the statute, Rev. Code, chap. 7, sec. 20? We are of opinion that the case does not come within the provisions of the statute.
It is said the grantee holds the property upon a secret trust for the debtor, and the statute applies to any estate or effects in the hands of a “trustee,” holding for the use of the debtor. It is clear, that the debtor, himself, could not enforce such a trust, for the conveyance, although void by the statute of Elizabeth, as to creditors, is good between the parties, and neither a court of law nor a court of equity will interfere at the instance of the debtor; in other words, the confidence reposed by him in the grantee is not recognised by the courts as a trust fit to be enforced, and as the proceeding, under the statute, rests on the footing of enforcing a trust, it follows that...
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McLean v. McPhaul
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