Aman v. . Walker

81 S.E. 162, 165 N.C. 224, 1914 N.C. LEXIS 249

• Court: Supreme Court of North Carolina
• Decided: March 25, 1914
• Status: Published

Opinion

AlleN, J.

The demurrer to the first cause of action ought .to have been sustained. The plaintiff does not allege in this cause of action that the lumber company owes him anything or has incurred any obligation to him, and the only ground of complaint is that the defendant Waller is indebted to the plaintiff, and that the lumber company is indebted to Waller in an amount not stated.

Tbis furnishes no reason for interference by a court of equity to restrain the payment to Waller, and the plaintiff has an ample legal remedy by garnishment, or by proceedings supplemental to the execution.

The demurrer to the second and third causes of action was properly overruled. It is alleged in these causes of action that the mortgage and bill of sale were executed with the intent to defraud creditors, and that this fraudulent intent was participated in by the lumber company, which, if true, would make both void, although supported by a valuable consideration.

The principles to be deduced from the authorities as to fraudulent conveyances, in so far as they are applicable to the facts alleged, are:

(1) If the conveyance is voluntary, and the grantor retains property fully sufficient and available to pay his debts then existing, and there is no actual intent to defraud, the conveyance is valid.

(2) If the conveyance is voluntary, and the grantor did not retain property fully sufficient and available to pay his debts then existing, it is invalid as to creditors; but it cannot be impeached by subsequent creditors without proof of the existence of a debt at the time of its execution, which is unpaid, and when this is established and the conveyance avoided, subsequent creditors are let in and the property is subjected to the payment of creditors generally.

(3) If the conveyance is voluntary and made with the actual intent iipon the part of the grantor to defraud creditors, it is void, although this fraudulent intent is not participated in by the grantee, and although property sufficient and available to pay existing debts is retained.

(4) If the conveyance is upon a valuable consideration and made with the actual intent to defraud creditors upon the part of the grantor alone, not participated in by the.grantee and of which intent he had no notice, it is valid.

(5) If the conveyance is upon a valuable consideration, but made with the actual intent to defraud creditors on the part of the grantor, participated in by the grantee or of which he has notice, it is void. Black v. Saunders, 46 N. C., 67; Warren v. Makely, 85 N. C., 14; Credle v. Carrawan, 64 N. C., 424; Worthy v. Brady, 91 N. C., 268; Savage v. Knight, 92 N. C., 498; Clement v. Cozart, 112 N. C., 420; Hobbs v. Cashwell, 152 N. C., 188; Powell v. Lumber Co., 153 N. C., 58.

As a cause of action is stated, without reference to the allegation of failure to file a schedule of debts under the assignment law, it is not necessary to pass upon the effect of chapter 918, Public Laws 1909, and best not to do so until the facts are fully developed.

No objection is made on account of a defect of parties, but it appears from the complaint that the property in controversy has been sold, and the purchaser not a party to the record. His presence is necessary to a complete determination of the controversy, as it now' appears, and he should be made a party. Bank v. Harriss, 84 N. C., 206.

The judgment of the Superior Court is modified in accordance with this opinion, and as thus modified is affirmed. The appellant will pay the costs of the appeal.

Modified and affirmed.