Fuller v. . Smith , 58 N.C. 192 ( 1859 )

The bill is filed under the statutes, Rev. Code, chap. 7, secs. 20 to 26, inclusively, to subject the estate of a nonresident debtor in the hands of an administrator. It appeared from the pleadings that James (193) Wisdom died intestate, in the State of Missouri, about 1854, without wife or issue surviving, and by the law of that State the defendant William Wisdom, his father, became entitled to his estate as sole distributee; that the said intestate, James Wisdom, at the time of his death, was entitled to a distributive share of the estate of one Abner Wisdom, who died intestate in the county of Caswell; that the defendant Jerry Smith, at January Term, 1857, of Caswell County Court, was appointed administrator of the said James Wisdom, and having qualified, received of the administrator of Abner Wisdom the distributive share due his intestate James, amounting to $214. The bill alleges that the defendant William Wisdom "is justly indebted to the plaintiff in the sum of $218.17, due by two notes bearing date 20 March, 1850, with interest from date," and it seeks to attach the fund in the hands of the defendant Smith for the satisfaction of this claim. Upon the production of the notes, it appeared that one of them was made payable to the plaintiff and the other to one William Hightower, and endorsed by him to the plaintiff, both notes bearing the same date — 20 March, 1850. It was admitted that Hightower, the payee in one of these notes, was a citizen of the State of Tennessee; and there was no evidence that the note was endorsed by him to plaintiff as agent or attorney, excepting that Hightower said in the presence of a witness that he would put this note into the hands of the plaintiff to collect for him. It was expressly admitted by the counsel in the court below that at the time of filing the bill the defendant Wilson had not enough property or effects in this State upon which an attachment at law could have been levied to satisfy plaintiff's debt.

The plaintiff's claim was resisted by the defendant Henderson Smith, who claimed title to the equitable interest in dispute by virtue of an assignment made to him by the said William Wisdom on 18 September, 1856, in the State of Missouri. The following is a copy of the deed:

"Know all men by these presents, that I, William Wisdom, of the county of Randolph and State of Missouri, for and in consideration of $100 to me in hand paid, the receipt whereof is hereby (194) acknowledged, have this day sold, and by these presents do grant, bargain and sell unto Henderson Smith, of the county and State aforesaid, all the right, title and interest which, as legatee or devisee, I may have in and to the estate of Abner Wisdom, deceased, late of the county of Caswell, State of North Carolina, and authorize him, etc.,; also, all my right, title and interest in the estate, money, etc., bequeathed by said Abner Wisdom, deceased, to my sons William T. and James J. Wisdom, both of Cooper County, in the State of Missouri, and I authorize him to sue for and receive any and all moneys, estate and property of whatever character to which they would be entitled if living. In witness, etc.

"WILLIAM WISDOM. (SEAL)

"Test.: TURNER WISDOM."

This deed was duly proved by one Willie, who deposed to the handwriting of the grantor therein.

The answer of defendant Henderson Smith states "that on 18 September, 1856, the defendant William Wisdom conveyed to this defendant by deed properly executed in the county of Randolph, State of Missouri, for the sum of $100, all his right and interest in the county of Randolph, State of Missouri, for the sum of $100, all his right and interest in the fund mentioned in the bill." There was no evidence of the payment of the purchase money except the recital in the deed, although the defendants were notified that such additional proof would be required.

The bill seeks to have this conveyance set aside as being a fraud upon the plaintiff, or to have the grantee declared a trustee for him. It was agreed by the counsel in this case as to the amount of the fund in dispute. The bill was duly sworn to, but the answer of defendant Henderson Smith was not. The bill is filed under the act of 1852, chap. 50, which is embraced in the Rev. Code, chap. 7, secs. 20 to 26, both inclusive, and its purpose is to attach the personal effects of the defendant Wisdom, an absent debtor, in the hands of the defendant Jerry Smith, who is the administrator of a deceased son of the said Wisdom, and to subject them to the payment of a debt claimed to be due to the plaintiff as a resident creditor. The defendant Henderson Smith was made a party because he claimed to be a purchaser for value of the interest of the defendant Wisdom in the estate in question before the filing of the bill, and the plaintiff seeks to impeach the conveyance made to him on the ground of fraud, or to convert him into a trustee on account of the circumstances under which his alleged purchase was made.

The counsel for the defendant, in this Court, resist the claim upon four grounds, which we will consider in the order in which they have been presented to us:

1. The first ground of exception is that the debt or demand of the plaintiff is not stated in his bill with the truth and accuracy which the law requires. This objection is founded upon section 26 of the act referred to, which is in the following words: "The plaintiff shall state specifically his debt or demand as near as he can, and shall make affidavit of the truth of the matters contained in his bill, according to his information and belief." The bill states that the defendant Wisdom is indebted to the plaintiff "in the sum of $218.17, due by two notes bearing date 20 March, 1850, with interest from date," and the truth of the matters set forth in the bill is sworn to by the plaintiff according to the best of his information and belief. So far as the statements of the bill are concerned, it seems to us that the requisition of the act has been strictly complied with. The amount of the debt is specified, and the manner in which it was secured is described with such particularity that there is no danger of mistaking it. When the notes are produced and proved, it appears that one of them was made payable to the plaintiff himself and the other to one Hightower, and by him endorsed to (196) the plaintiff; but, in substance and legal effect, the latter as well as the former was due to the plaintiff at the time when his bill was filed, and the statement was true that the defendant was indebted to him in the amount of the two notes, and they were sufficiently described by that amount and by the date on which they were given.

2. The second objection is that the remedy provided in the act is confined to creditors residing in the State, and cannot be availed of by a citizen of the State as a mere agent, attorney, or trustee for a nonresident creditor. This objection is based upon the supposition that the plaintiff was acting, as to one of the debts, as the agent or attorney of Hightower, who it was admitted was a citizen of Tennessee. We are inclined to think the objection would be a good one if it were supported by the facts. The note in question was undoubtedly at one time due to Hightower, and to him alone, and the testimony shows that he then claimed it and spoke of taking steps to have it collected; but we afterwards find it endorsed to the plaintiff, whereby the legal title was clearly transferred to him. There is no evidence that it was not endorsed to him to do so. We find him in the possession of the note with the ordinary legal evidence of being the owner, and we think the presumption must be, at least for the purposes of this suit, that he is the owner in equity as well as at law until the contrary is shown.

3. Another objection is that the plaintiff has not proved to the satisfaction of the court that the debtor had not in the State, at the filing of the bill, enough estate on which an attachment at law might have been levied to satisfy his debt or demand, as is required by section 24 of the act. This fact was expressly admitted in the court below by the counsel for the defendant, and yet his counsel in this Court insists strenuously that such admission cannot dispense with the requisition of (197) the act — that the fact must be proved. We cannot agree for a moment that the admission of the counsel of a party to a suit, made for the purpose of dispensing with the trouble and expense of obtaining proof of a fact, is not to be deemed satisfactory to the Court. In most other kinds of suits it is conceded that such an admission would be taken as sufficient proof. See Greenleaf on Ev., sec. 189. But it is said that suits by attachment are not favored by the courts, and that the proceedings in them are to be construed with great strictness. They are compared in this respect with suits for divorce and alimony, where the facts are required to be submitted to and passed upon by a jury, "upon whose verdict, and not otherwise, the court shall decree." But there is an obvious distinction between cases of that kind and the present. In suits for divorce collusion is feared, and is, therefore, specially guarded against; but in attachment suits such collusion is about the last thing that is to be apprehended, and the admission made by counsel in them is no more to be rejected than it would be in any suits other than those for divorce and alimony.

4. The fourth and last objection is made on behalf of the defendant Henderson Smith, who insists that he is the purchaser, for value, of the interest of the defendant Wisdom in the estate of the deceased son, which interest the plaintiff is now seeking to subject to the payment of his debt. The evidence of this purchase is a deed of assignment executed in the State of Missouri on 18 September, 1856, and purporting to be made in consideration of the sum of $100 to the grantor in hand paid, the receipt whereof is thereby acknowledged. The recital in the deed is the only evidence of the payment of a consideration. Is that sufficient? We think that under the circumstances it is not. The answer of this defendant — the truth of which is not verified by affidavit, though it has not been objected to on that account — does not distinctly aver that any money or money's worth was paid as the price of the interest assigned to him. It states only that the defendant Wisdom conveyed to (198) him the interest in question "by deed properly executed in the county of Randolph, State of Missouri, for the sum of $100." Whether that sum was actually paid in cash or was only secured to be paid by a promissory note or other security for money is not alleged. It is clearly proved that this defendant knew of the debt due to Hightower and promised to collect or secure it for him before he procured the assignment under which he now claims the interest for himself. On this account the plaintiff insists that if the assignment be sustained the assignee ought to be held in this Court to be a trustee for him as the endorsee of Hightower. But we cannot regard the defendant Henderson Smith as an assignee at all until he proves by other evidence than the mere recital in his deed that he paid the price therein mentioned. He was fully apprised that such additional proof would be required, for it appears from an agreement of counsel made at the December Term, 1858, of this Court, which is filed among the exhibits in this cause, that the suit was continued for the express purpose of allowing this, among other proofs to be made, but none such has been made either by the admission of counsel or otherwise, and we are, therefore, obliged to conclude that this defendant did not pay any consideration for his alleged purchase. The result is that the conveyance executed by the defendant Wisdom to him cannot have the effect to prevent the plaintiff from having a decree for the satisfaction of his debt out of the effects in the hands of the defendant Jerry Smith as the administrator of James Wisdom, to which the defendant William Wisdom is entitled as sole next of kin of the intestate. The decree must be made upon the terms prescribed in sections 21 and 22 of chapter 7 of the Revised Code.

PER CURIAM. Decree accordingly.

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