Davis v. . Garrett

25 N.C. 459

• Court: Supreme Court of North Carolina
• Decided: June 5, 1843
• Status: Published

Opinion

Rufpjn, C. J.

Very much' for the reasons given in the full and satisfactory argument of the counsel for the inter-pleaders, the court is of opinion, that the judgment should be affirmed, indeed, we think, that the interest of the wife in' the negroes is not the subject of attachment at the suit of the husband’s creditors; because no specific and tangible property can be attached, which cannot be sold under the execution, after judgment obtained. And we are of opinion, as stated in the argument, that the purposes of the trust absolutely demand, that the legal estate should vest in the trustees ; and, therefore,-that the property cannot be sold under execution, so as thereby to divest the trustees of their estate or any part of it, in the present state of the family. However, that question does not arise here cm the record', as it stands; though we have thought it proper to notice it, in the hope of preventing unprofitable and vexatious litigation. For, although the trustees have interpleaded forseven.-eights only of this share of the negroes, that will not conclude them as to the other eighth ; since the owner is not obliged to interplead, though allowed to do so for convenience, and the sale under the execution only passes such right as the defendant in attachment has in the thing attached or sold.

Per Curijím. Judgment affirmed.