Den. on Dem. of Jimmerson v. Duncan

48 N.C. 537

• Court: Supreme Court of North Carolina
• Decided: August 5, 1856
• Status: Published

Opinion

Battle, J.

We are unable to distinguish this ease from those of Gowing v. Rich, 1 Ire. Rep. 553, and Gentry v. Har per, 2 Jones’ Eq. 177; and we think, therefore, that the judgment of nonsuit was right. It is not pretended that the conveyance to A. L. Erwin, as trustee, was not bona fide and fair. Admitting that conveyance to be good, the legal title of the land in question was transferred from John Duncan, the grantor in trust, to the trustee, and then the purchase from him by the defendant, James II. Duncan,, supposing it to have been with the money of his father, created exactly such a trust as those of Gowing v. Rich, and Gentry v. Harper, in which it was held that the remedy of creditors was not by a sale of the debtor’s interest at law, but by a bill to subject it in Equity.

Dobson v. Erwin, 1 Dev. and Bat. Rep. 569, and Morris v. Allen, 10 Ire. Rep. 203, cited for the plaintiff, were eases where sales by sheriffs were successfully impeached for the fraudulent contrivances of the debtors and ostensible purchasers, in consequence of which, it was held' that the- legal- title of the lands still remained in the debtors, and of course- subject, at law, to be sold under execution, at the instance of creditors.

Per Curiam.

The judgment is affirmed.