Opinion
December Term, 1837.
1. All the residuary legatees are necessary parties to a bill seeking to subject the share of one of them to a debt, especially when the interest of each legatee is uncertain, depending upon the amount of advancements made them in the lifetime of the testator.
2. A creditor cannot obtain the aid of a court of equity to procure satisfaction of his debt under any circumstances until he has established his claim at law and issued an execution therefor.
WILLIAM BETHELL and Absalom Watt filed their bill against John P. Wilson, and also against Sarah and Covington Wilson, executrix and executor of John Wilson, deceased, and thereby charged that the plaintiffs and the defendant, John P., in the year 1826, entered into a copartnership for the purpose of buying and selling slaves: that the defendant, John P., was the acting partner of the concern, received the capital paid in, purchased a parcel of slaves, carried them to the south and sold them, partly for cash and partly on credit: that the said defendant paid to the plaintiffs a part of the moneys he had received and subsequently wrote to the plaintiff, Bethell, informing him that there yet remained to be collected for the concern, the sum of three hundred and seventy-five dollars, which when collected and expenses paid, were to be divided among the partners as profits according to the contract: that soon afterwards, the said defendant did collect the said debt, and others due to the concern, and in the year 1827 or 1828 made a settlement with the plaintiff, Watt, at which he admitted himself indebted to the (611) plaintiffs, as partners, in the sum of two hundred and fifty dollars or thereabouts, and stated and signed an account to that effect, which has been lost or mislaid. The plaintiffs further charged that the said defendant originally resided in the county of Rockingham, in this State, but after his return from the South, removed over the State line into Virginia: that he occasionally came into this State: that process was sued out here against him, but the plaintiffs were unable to get it executed, and that soon thereafter he moved off, as they had been informed, to the State of Alabama. The bill then proceeded to state that the said defendant had left no property in this State, liable to an attachment, except an interest in remainder in an undivided tenth part of a tract of land, and certain slaves and personal property, which the father of the said defendant had devised and bequeathed to the defendant, Sarah (his widow), during her life or widowhood; and then to be equally divided between his ten children: that the said Sarah was an aged woman, and the plaintiffs were apprehensive that the defendant, John P., would assign his interest in the said legacy without returning to this State. The bill prayed that the defendant, John P., might set forth on oath the amount due to the plaintiffs: that the defendants, Sarah and Covington might set forth on oath what property of their testator would belong to the said John P. after the death of the said Sarah: that the interest of the said John P. in this property might be sold to satisfy the debt due to the plaintiffs: that the said John P. might be in the meantime restrained from demanding or receiving or assigning his interest in the said legacy; and that the said Sarah and Covington from delivering over the same to him, or to any other person and also for general relief. Upon affidavit that the defendant, John P., resided out of the State, publication was ordered and made against him to appear and answer to the bill, or that the same would be taken pro confesso against him. He did not appear and the bill was accordingly against him taken pro confesso and set down to be heard ex parte.
W. A. Graham for the plaintiffs.
Winston for the defendants.
The defendants, Sarah and Covington Wilson, answered, but it is not thought material to state more of their answer than that they alleged, that by the will of their testator it was expressly declared, with regard to the division between the children of the testator (612) of the property devised and bequeathed to the said Search for life or widowhood, "that from first to last, together with what they have received, and may hereafter receive, each child shall receive the same amount; "and that they were utterly unable to ascertain what portion of the said property under the said limitation the said John P. would be entitled to receive.
Upon these pleadings, it is evident, we think, that no decree could be made subjecting any specific part of the residuary interest in the property in question to be made liable for the debts of the defendant John P., until it was ascertained what was the said John P.'s interest therein; and that this could not be ascertained, without bringing before the Court all those interested in the bequest so that an account might be taken of their respective advancements.
But the Court will not retain the cause for the purpose of having these parties made as it is satisfied that the plaintiffs cannot have the relief which this bill asks, or any relief of the same kind.
The bill does not seek for the settlement of the accounts of the partnership, but for satisfaction of a debt alleged to be absolutely due from the defendant, John P., to the plaintiffs by virtue of an account stated; and recites the partnership and other matters therewith connected as inducement to said settlement.
But the plaintiffs as creditors cannot ask the aid of a Court of Equity to have a sale of the property of their debtor, because they have not obtained any judgment for their debt, not sued out an execution by which a lien has been created on that property. In the language of this Court on former occasions, "Nothing is clearer, than that a mere creditor cannot, in equity, pursue his debtor's property in the hands of a third person." Donaldson v. Bank of Cape Fear, 1 Dev. Eq. Rep., 107. Clark v. Banner, decided at this term. The (613) remedy by attachment given by our acts of assembly must be sought in the courts which are authorized to administer it. If that remedy be not sufficiently extensive to reach the property which the plaintiffs would fain make liable for their debt, a Court of Equity has no right to enlarge the remedy by supplemental legislation. In some states, we understand the attachment laws have been so modified as to authorize their Courts of Chancery to help creditors before execution or judgment, to reach moneys due to, or property held for nonresident debtors. Our State has not thought proper, and probably never will think proper, to confer this large and dangerous jurisdiction.
The bill must be dismissed, and as against the representatives of John Wilson, deceased, with costs.
PER CURIAM. Bill dismissed.
Cited: Bank v. Harris, 84 N.C. 209; Frank v. Robinson, 96 N.C. 33.