Summary
In Thompson v. Ford, 29 N.C. 418, a slave had been conveyed in trust for the payment of debts. He was sold under execution against the party executing the deed in trust.
Summary of this case from Mayo v. StatonOpinion
(August Term, 1847.)
1. Where a slave has been conveyed by deed in trust for the payment of debts a sale of such slave, under an execution against him who executed such deed, is not valid, at least while any of the debts remain unpaid.
2. The indorsement by such a trustee on the deed "that he had sold (a certain negro) and satisfied the claims mentioned in the within deed, and retained a balance of $. . . . . . . in my hands," does not purport or amount to a conveyance by him, but only shows that he then no longer held the title for the creditors secured in the deed, as one of the trusts on which he took it originally, but only for the maker of the deed, or such persons as might be entitled through him, either by contract or act of law.
APPEAL from LINCOLN Spring Term, 1847; Settle, J.
Trover for a slave named Willis, in which the defendant pleaded not guilty. It came before the court upon the following case agreed:
On 24 February, 1842, William Fullenwider, of Lincoln County, then the owner, conveyed the said Willis and a woman named Eliza, by deed of trust, to the plaintiff, in trust to sell and out of the proceeds pay certain debts in the deed mentioned; and the deed was proven and registered on the same day. Payments were made on the debts secured by Fullenwider so as to reduce them considerably, during 1843. In June, 1842, Jacob Ramsour recovered two judgments against Fullenwider: one for $136.17 1/2 and the other for $1,087.35; and he issued writs of fieri facias thereon, and raised the sum of $123.21 by the sale of some land; and as to the residue there were returns of nulla bona in September, 1842. In October following Ramsour exhibited his bill in the court of equity against Fullenwider and Thompson, charging that the two slaves were of value more than sufficient to discharge the balance of the secured debts, then unpaid, and praying to (419) to have his debts satisfied out of the surplus; and that suit is still pending. On 5 January, 1843, the negro Willis was taken out of the possession of the present plaintiff, by a constable, upon two justices' executions against Fullenwider for about $102, and delivered by him to Fullenwider, and Fullenwider immediately sold the negro to the present defendant, at the price of $600, whereof the sum of $102 was applied to the payment of the executions in the constable's hands and the residue of $498 credited on a debt which Fullenwider owed Ford; and then he, Ford, carried the negro to Cabarrus County, where he resided. Shortly afterwards the negro returned to the possession of the plaintiff, and he kept him about a month. He was then enticed away by some person unknown, and carried back to Cabarrus, and was then seized by the sheriff of that county under a fieri facias issued on a judgment in Lincoln Superior Court in favor of John F. Cowan against said Fullenwider and another, bearing teste the second Monday after the third Monday of February, 1843; and he was sold at the price of $600 on 2 June, 1843, to the present defendant, who has since held the negro and claimed him as his own.
On 5 June, 1843, the plaintiff sold the woman Eliza for $362, and then made on the deed, and signed, an entry in the following words: "Sold negro Eliza for the sum of $362, and satisfied the claims mentioned in the within deed, and retained a balance of $247.01 in my hands."
After filing his bill, Ramsour sued out other writs of fieri facias on his judgments, and, after indemnifying the sheriff, had some personal property sold, which was claimed by other persons, and thereby raised on the one execution the further sum of $54, and on the other that of $447.05.
This suit was brought in September, 1843, and upon the case (420) agreed, judgment was entered for the plaintiff for a sum specified therein, for which it was to be entered in case the opinion of the court should be for the plaintiff; and from the judgment the defendant appealed.
Thompson and Williamson for plaintiff.
Boyden and Iredell for defendant.
The Court can take no notice of the rights of Ramsour arising out of the filing and prosecution of his bill in the court of equity. It belongs to that court to vindicate its jurisdiction by dealing with persons who violate rights created by a lis pendens there.
Sitting in a court of law, we cannot judicially know how a court of equity will apply an equitable fund of this sort to the satisfaction of creditors, or as between the creditors and the assignee of its owner. We can look only to the legal rights of the parties to this record. But confining ourselves even to that limit, we hold that the plaintiff must recover. The plaintiff got the legal title by the conveyance of Fullenwider, and it has never been divested out of him and gained by the defendant, of course the defendant took nothing by his purchase from Fullenwider himself. Nor did he get a title under the purchase from the sheriff, because the negro at the time he was seized and sold was not liable to execution, and consequently the sale passed nothing. Section 2 of the act of 1812 which authorizes the sale of an equity of redemption is confined to a mortgage of lands, tenements, rents, and hereditaments; and, therefore, this case is not within that clause of the act. Nor is it within the first section, although that extends to both lands and goods, because, on 2 June, 1843, when the defendant purchased, there was a balance due on the debts secured by the deed, and the same remained due until the 5th of that month, when it was paid out of the proceeds of the sale then made of the other negro by the plaintiff. (421) At the sale to the defendant, therefore, the negro Willis was not held by the plaintiff upon a pure and simple trust for Fullenwider, the defendant in the execution, but upon a mixed trust, for him and the creditors secured in the deed; and that is not within that section of the statute, Brown v. Graves, 11 N.C. 342, and the sale to the defendant passed nothing.
The memorandum made on the deed and the facts stated in it did not determine the plaintiff's title. They do not purport or amount to a conveyance by him, but only show that he then no longer held the title for the benefit of the creditors secured in the deed, as one of the trusts on which he took it originally, but only for Fullenwider or such persons as might be entitled through him, either by contract or act of law. Still the legal title was left in the plaintiff, and that entitles him to judgment in this action.
PER CURIAM. Affirmed.
Cited: Sprinkle v. Martin, 66 N.C. 56, 57; Hardin v. Ray, 94 N.C. 460; Mayo v. Staton, 137 N.C. 676, 679.
(422)