Fisher v. . Worth

45 N.C. 63

• Court: Supreme Court of North Carolina
• Decided: December 5, 1852
• Status: Published

Opinion

Pearson, J.

A debtor executes a deed conveying all of his property to a third person, in trust to sell the property and apply the proceeds to the payment of his creditors. The plantiff was one of the creditors, and instead of taking benefit under the deed of trust in the first instance, he opposed it and attempted to collect his debt by judgment and execution. Failing in this, he falls back, and now seeks to recover his debt, by claiming under the deed of trust which he had before repudiated. Without deciding whether he is not bound by. his election, it is sufficient to .say, that he has no right to call for an account and distribution of the trust fund, without making the other creditors who are entitled to share the fund with him parties, either plantiffs or defend ants, so that all may be bound by the account. The trustee should be protected, and the matter of controversy finally disposed of. Otherwise, the trustee might be subjected to as many suits as there are creditors. The account taken in the suit of one, would be no protection in the suit of another creditor. This is not allowed by the^ourse of proceeding in a Court of Equity.

Per Curiam. Bill dismissed, with costs.