Claflin v. . Harrison

12 S.E. 895, 108 N.C. 157

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Shephekd, J.:

The plaintiffs pray judgment for their debts; that the defendants be declared guilty of a fraud in contracting the same; that an execution be issued against their persons in the event that executions against their property be returned unsatisfied, and that one of the defendants be required to turn over to a receiver the personal property exemption hitherto allotted to him out of the assets of the firm. They also pray that the lands of Nancy Verrell be sold by a. commissioner and that the proceeds of the sale be distributed among them. We are at a loss to understand the precise nature of this action, but it is very clear from the face of the complaint that the lands of the defendant Nancy cannot be sold in this summary manner. It does not appear that they constitute any part of the assets of the partnership; nor does it appear that she is a married woman, and that, her property is sought to be subjected in equity as such; nor is it shown that she has conveyed her said property for the purpose of defrauding the plaintiffs, so as possibly to bring the case within Bank v. Harris, 84 N. C., 206.

As, therefore, upon the facts alleged, no judgment can be rendered affecting her lands, it must follow that the defendant Hilliard, who has a mortgage upon the same, is not a proper or necessary party, and that there was no error on the part of his Honor in dismissing the action so far as he is concerned.

The Code, § 218, provides for service by publication in the cases mentioned, only where it appears “ that a cause of action .exists against the defendant in respect to whom service is to be made, or that he is a proper party to an action relating to real property in this State.”

As there is no cause of action alleged against the said Hilliard, nor any cause of action shown by which the land in which he is interested can be affected, the order of publication was improvidently granted, and the ruling of his Honor must be affirmed.

Affirmed.