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Homesley v. Hogue

Supreme Court of North Carolina
Aug 1, 1857
49 N.C. 481 (N.C. 1857)

Summary

In Homesley v. Hogue, 2 Jones 391, the Court in holding that it was not competent for a creditor, in order to establish the fraud in question, to show that the debtor had made a fraudulent transfer of of other property to another person, say, "Whether the plaintiff had defrauded his vendee in the sale of the land, had no more bearing upon the issue before the jury, than to prove that in the sale of the horse to another person he had committed a fraud, or to prove he was in the habit of committing fraud.

Summary of this case from State v. Shuford

Opinion

August Term, 1857.

Only such estate as a debtor has, passes by virtue of an execution sale.

The owner of an ultimate estate in chattels, cannot maintain an action against a sheriff, who has an execution against the owner of a particular interest, for selling it, although he professes to sell the entire property in such chattels.

This was an action of TROVER, with a count in CASE, tried before ELLIS, Judge, at the Fall Term, 1856, of Cleaveland Superior Court.

The action was brought to recover the value of several slaves, which it was alleged he had an estate in, and which had been sold and converted by the defendant. The plaintiff bought the slaves, in question, from one Joseph Hardin, and took from him a bill of sale, as follows:

"Received of A. R. Homesley twenty-three hundred dollars in full payment for six negroes, viz: one old man named Harny, c., (describing them,) which negroes I warrant to be sound in body and mind; also, I warrant the title good. July 12th, 1853. J. HARDIN, [ seal.]')

At the same time the plaintiff executed and delivered to Hardin the following instrument, viz:

"I have this day bought six negroes of Joseph Hardin, and have paid him twenty-three hundred dollars for the same. He is to have the use of hire of the negroes until the 15th of October, for boarding them till that time. I also give him liberty to sell the said negroes to any other person, provided he does so in one month from this date, by refunding me my money. The negroes, Sol, Harny, c., (describing the same as are contained in the foregoing bill of sale). Signed, A. R. HOMESLEY."

It was proved that the defendant had the slaves sold entire, and not the particular interest of Hardin only, in order to satisfy an execution in his favor against Hardin, and the said property was bought by the latter.

Upon these facts, it was intimated by his Honor, as his opinion, that the plaintiff could not recover; for the reason that Hardin, the debtor, had an interest in the slaves, which could be sold under the execution.

In submission to which opinion, the plaintiff took a nonsuit, and appealed to this court.

Guion and Lander, for plaintiff.

Baxter, Cabaniss, and Hoke, for defendant.


A sale, under execution, passes only such interest or estate as the debtor may rightfully pass, because it operates by act of law. If, therefore, a debtor has a particular estate, and the property is sold under execution, the party entitled to the ultimate estate, or remainder, (as it is usually termed,) has no ground of complaint; for his estate is in nowise interfered with, notwithstanding the officer may profess to sell the "entire estate, and not a particular interest only."

In our case, the debtor was entitled to the slaves from the 12th of July, 1853, until the 15th of October, and we assume from the statement, that the sale was made during that time. The defendant did not interfere with them afterwards. It is clear that the count in trover cannot be maintained, for the plaintiff was not entitled to the possession at the time of the supposed conversion. It is equally clear, that the count in case, could not be sustained, for, as we have seen, the sale which was made, at the instance of the defendant, in nowise interfered with his estate. It is only in cases where the property is destroyed, or removed to parts unknown, (which is considered as amounting to a destruction,) that a remainderman can maintain "case" for the injury to his estate; upon the same principle that a tenant in common is allowed, under such circumstances, to maintain an action.

There is an additional fact set out in the statement: The debtor bought the property; so that to all intents and purposes, the plaintiff, after the sale, stood in statu quo, and his having a cause of action, either in trover or case, is out of the question. There is no error.

PER CURIAM. Judgment affirmed.


Summaries of

Homesley v. Hogue

Supreme Court of North Carolina
Aug 1, 1857
49 N.C. 481 (N.C. 1857)

In Homesley v. Hogue, 2 Jones 391, the Court in holding that it was not competent for a creditor, in order to establish the fraud in question, to show that the debtor had made a fraudulent transfer of of other property to another person, say, "Whether the plaintiff had defrauded his vendee in the sale of the land, had no more bearing upon the issue before the jury, than to prove that in the sale of the horse to another person he had committed a fraud, or to prove he was in the habit of committing fraud.

Summary of this case from State v. Shuford
Case details for

Homesley v. Hogue

Case Details

Full title:A. R. HOMESLEY v . STEPHEN HOGUE

Court:Supreme Court of North Carolina

Date published: Aug 1, 1857

Citations

49 N.C. 481 (N.C. 1857)

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