Opinion
(December Term, 1840.)
Where a plaintiff obtains a judgment at law which becomes dormant, it is not necessary to revive it in order to enable him to apply to a court of equity for its aid in procuring satisfaction of the judgment.
It is generally necessary to issue an execution at law before coming into this Court for its aid: first, because, where the object is to clear the title of property, alleged to be subject to execution, from encumbrances, etc., the execution must be issued that it may create a lien on that specific property; secondly, that it may appear from the return of nulla bona that the defendant has no property which can be reached by an execution of the law. But no further execution is necessary where the defendant had been once taken on a ca. sa. and discharged under the insolvent debtor's law; and where he admits in his answer to the bill that he has nothing tangible by an execution, but only choses in action held in trust for him.
THIS case came originally before this Court upon demurrer, which was overruled. See 22 N.C. 138. The cause was then remanded, and the defendants Long, Hardie and Hargrove (191) answered, and the other defendants let the bill be taken pro confesso against them and set for hearing ex parte. Having been set for hearing in ROWAN Court of Equity upon the bill, answers, judgment pro confesso, exhibits and interlocutory order, the case was, at the Fall Term, 1840, transmitted to this Court for a determination. The only ground upon which the defendant now resisted the plaintiff's recovery was that the judgments at law of Campbell Brown against Long, sought to be enforced by this bill (see former case), were dormant at the time the bill was filed, and that Campbell's judgment is still so.
Iredell for the plaintiffs.
J. H. Bryan and Boyden for the defendants.
It appears upon the pleadings that the plaintiff Brown gave to the plaintiff Campbell his bond with surety for the amount of the debt of Long, one of the defendants, to Campbell, for which Brown was Long's surety; and that thereupon Campbell assigned the judgment at law to the plaintiff Cowan, in trust for Brown. It is admitted by the defendants who have answered that Josiah Huie and Robert Huie were respectively indebted to Long by bonds in the sums mentioned in the bill, and that he, Long, endorsed the bonds to the defendants Hardie and Hargrove, in trust for himself and to enable them to collect the debts for his benefit. It is also admitted by them that the defendant Long has no visible or tangible property. But Long states in his answer, and such is the fact, that at the filing of the bill both the judgment obtained by Campbell and that obtained by Brown against Long were dormant; and although, pending this suit, the latter has been revived, Campbell's judgment is still dormant, and for these reasons he insists that there can be no relief here in respect to either of the judgments.
An order was made by consent in the Court of Equity of Rowan County that the master in that court should collect the moneys due on the bonds of the Huies, and hold the same subject to the decree of the court, and the cause was set for hearing and sent to this Court. (192)
But a single question arising in the present state of this case, which is whether the plaintiffs are precluded from the relief to which they would otherwise be entitled, because the judgments at law were dormant when the bill was filed, and one of them is yet so? Upon the consideration of it our opinion is against the objection made by the defendants.
We agree that the creditor must show himself to be so by judgment, for it is only after he has established his debt at law that he can claim the interposition of this Court to aid him, either by making his execution at law effectual or by giving him relief by decree in this Court in the nature of an execution. Rambaut v. Mayfield, 8 N.C. 85. But here the debts have been reduced to judgments, and thus their justice conclusively established. It is true no execution could regularly issue on them while dormant; but even then there is not such a presumption of satisfaction as to render an execution, if issued, void. It is only irregular and may be set aside at the instance of the party. Oxley v. Mizle, 7 N.C. 250; Dawson v. Shepherd, 15 N.C. 497. Much less can it be assumed in this suit that the judgments are satisfied, or that the whole debts do not remain justly due, when the debtor himself, after admitting the original debts and judgments, does not pretend in his answer that he has ever paid one cent upon either. The arrangement between Campbell and Brown does not amount to payment, for to avoid any possible inference of the sort an assignment is taken to a third person, which has been held sufficient to keep the security on foot. Hodges v. Armstrong, 14 N.C. 253; Sherwood v. Collier, 14 N.C. 380.
Then, with regard to issuing an execution on a judgment before coming into this Court, we agree likewise that it is generally proper and necessary, and that for several reasons. Where the object of coming into a court of equity is to ascertain encumbrances, to set aside conveyances as fraudulent, or otherwise clear the title of property which the creditor alleges is liable to be sold under execution at law, the suing out of an execution before filing the bill is indispensable to create a specific (193) lien on the particular property in respect to which relief is sought. But if the property out of which the satisfaction is sought be an equitable right merely or any other right, which cannot be reached by a legal execution, it is vain to issue the execution so far as respects the creation of a lien, for if issued it could have no such effect. It is, however, ordinarily proper, even in such a case as the last, to take out an execution; but for a different purpose, namely, to establish, by demanding property from the debtor and a return of nulla bona, that satisfaction cannot be had at law out of any other effects of the debtor, and for that reason that the creditor was compelled to come into a court of equity for satisfaction out of such of the debtor's effects as that court only can reach. A court of equity never interposes in behalf of a mere legal demand until the creditor has tried the legal remedies and found them ineffectual. Then and not before this Court lends its extraordinary aid. McKay v. Williams, 21 N.C. 398; Rambaut v. Mayfield, 8 N.C. 85. But in the present case the necessity for the action of this Court sufficiently appears, without resorting to further executions at law. The debtor was once taken in execution, and obtained his discharge as an insolvent; and he now admits that when this bill was filed and when he answered he had nothing tangible nor any effects but these equitable demands, due on notes assigned by himself, and held in trust for him. What useful purpose could a further execution answer in such a case? None whatever. It could create no lien, nor could it establish as clearly as it is established by the answers that the creditor could not obtain satisfaction at law, or by means of any execution but such as this Court can supply.
We therefore think the defense must fail, and declare the plaintiff Brown entitled to satisfaction of the principal money and interest and the costs due on the two judgments, out of the moneys arising from the bonds of the Huies; and it must be referred to the master to inquire and report the sums due in respect thereof; and, also, the master of the Court of Equity for Rowan County must be directed to pay into this Court the moneys arising from the said bonds of Josiah Huie and Robert Huie, as he may collect the same, to be applied as far as necessary to the satisfaction of the plaintiff's said (194) demands and the costs of this suit.
PER CURIAM. Decree accordingly.
Cited: Frost v. Reynolds, 39 N.C. 500; Kilpatrick v. Means, 40 N.C. 222; Powell v. Watson, 41 N.C. 95; Bridges v. Moye, 45 N.C. 173; Murphrey v. Wood, 47 N.C. 64; Bryan v. Brooks, 51 N.C. 580; Brittain v. Quiett, 54 N.C. 330; Hanner v. Douglass, 57 N.C. 266; Dixon v. Dixon, 81 N.C. 327; Hinsdale v. Sinclair, 83 N.C. 340; Bank v. Harris, 84 N.C. 209.