Crummen v. . Bennet

68 N.C. 494

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Pearson, C. J.

A makes a conveyance of his land to B, which conveyance is fraudulent and void as against the creditors of A. A creditor takes judgment and issues execution, treating the conveyance to B as void; can the homestead of A be sold ? The creditor treats the conveyance to B as void and of no effect;. take that to be so, how can the creditor have any more right against A than he would have had if the conveyance had not been made ? We .can see no ground to support the position, that an attempt to commit a fraud is a forfeiture of the debtor’s homestead; there is no provision of the kind either in the Constitution or the statutes. The only legal consequence of a deed with an intent to defraud creditors is, that although valid as between the parties, it is void as to creditors.

In this case, the fraud did not consist in conveying the homestead; for the creditor could not have reached that by his execution had the debtor retained his homestead; but the fraud was in conveying the other part of the land. That, the creditor can reach by his execution. As to the homestead, he has no concern; that matter will rest between the fraudulent donor and donee.

Error.

Per Curiam.

Venire de novo.