Opinion
December Term, 1850.
1. A, by a bona fide deed proved and registered in May, 1843, conveyed a slave to B, in trust to secure the payment of certain debts. B, by deed, conveyed the slave to C for certain price, all of which was afterwards paid by A, except $100. C then, by deed dated in 1847 and proved in 1849, in consideration of the said $100, conveyed the slave to D: Held, that though D might have taken that conveyance in trust for A upon the payment of the $100, yet, while the property remained in that situation, the $100 not being paid, A had no such interest as was liable to an execution against him.
2. Estoppels must be mutual, and bind only parties and privies. One who is not bound by an estoppel, cannot take advantage of it.
APPEAL from the Superior Court of Law of PASQUOTANK, at Special Term in December, 1850, Battle, J., presiding.
B. F. Moore and Ehringhaus for plaintiff.
Heath for defendant.
This was an action of detinue for a negro slave named Mary. Plea, non detinet. Upon the trial, both parties claimed under Stephen D. Pool, to whom the slave in question formerly belonged. The plaintiff exhibited a deed in trust from the said Pool to William L. Shannonhouse, dated, proved and recorded in 1843, the trust being in payment of certain debts therein named. Shannonhouse, the trustee, sold the slave at public auction to Samuel J. Proctor for $625, and conveyed her by bill of sale for that consideration. Proctor afterwards conveyed the slave to the plaintiff, by deed dated in November, 1847, and recorded in March, 1849. In this deed the consideration is stated to be $500, and it is recited that the property had been conveyed by the said Proctor to J. C. B. (440) Ehringhaus in trust, by a deed bearing date in December, 1843, and duly registered. The plaintiff further proved a demand and refusal.
The defendant then produced the record of a judgment against the said Pool, rendered by the County Court of Pasquotank, at December Term, 1848, on a note bearing date in August, 1848. He then showed an execution issued on the said judgment, proved a sale made under it by the sheriff on 17 February, 1849, and produced the sheriff's deed to himself. He then called as a witness Samuel J. Proctor, who testified that the slave, Mary, remained in the possession of Pool from the time of his execution of the deed in trust to Shannonhouse until she was sold by Shannonhouse; that he, the witness, purchased her for the benefit of the said Pool, intending, however, to retain the title until her purchase money should be repaid; that payments were made by some person (it was alleged to be by Pool) until the sum was reduced to $100, with a small amount of interest accrued thereon. He testified further, that when he was about to sell the slave to the plaintiff he and Pool were at the plaintiff's office, and Pool said to him in the plaintiff's presence that he, the plaintiff, had befriended him before, and that he was willing to do it again, and that the plaintiff would pay him $100 for the said slave, and keep the title as collateral security until Pool should be able to repay him; and that he, the witness, received the $100 from the plaintiff and executed the bill of sale above referred to. This witness testified further, that the debts mentioned in the deed in trust from Pool to Shannonhouse were fair and bona fide. It was also in evidence that Pool was reputed to have been insolvent for some years prior to 1848, but no witness testified to the existence of any debt owing by him in 1843 which was not embraced in the said deed in trust. It was proved, also, that the slave remained in Pool's possession until she was levied upon by the sheriff. The (441) defendant contended that the plaintiff was estopped, by the recital in the bill of sale from Proctor, to show that the title was not in Ehringhaus. But the court was of opinion that the plaintiff could not be estopped by a deed which the defendant objected to as void. The defendant then insisted that the plaintiff's bill of sale was not registered until after the time the lien of his execution had attached, and that it was fraudulent and void because it was absolute on its face, whereas he contended, that it was made in trust for Pool. He contended further, that it was void, as was also the deed in trust from Pool to Shannonhouse, because Pool had been permitted to retain possession.
The court was of a different opinion upon all these points, and charged the jury that the plaintiff was entitled to recover. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
In May, 1843, Pool conveyed the slave to Shannonhouse, in trust to pay certain debts. Soon thereafter Shannonhouse sold the slave, at public auction, to Proctor, who paid for her by putting his note in bank for the price, $625, in satisfaction of a debt secured by the trust. Pool continued in possession and made sundry payments upon Proctor's note in bank, so as to reduce it to about $100. In November, 1847, Proctor, upon the payment of the $100 by Griffin, conveyed the slave to him. In December, 1848, a judgment was taken against Pool, and the slave was levied upon as his property and sold by the sheriff to the defendant, in February, 1849.
The court was of opinion that the plaintiff was entitled to recover. We concur in the opinion. The deed of trust, (442) which is admitted to have been bona fide, passed the title out of Pool, and the sale by Shannonhouse passed it to Proctor, who passed it to Griffin, the plaintiff.
Admit that Proctor took the legal title in trust for Pool after the payment to himself of $625. Admit that, under this arrangement, Pool reduced the debt to $100, and then Proctor, upon the payment of that sum by the plaintiff, conveyed to him, and that he took the title to secure the $100, and then in trust for Pool. The latter had no such interest as was liable to execution. Gowing v. Rich, 23 N.C. 553. Nor does the fact that Pool continued in possession during all the time make it a fraud under the statute of Elizabeth. That statute never applies, except when the original transfer by the debtor is fraudulent, so that, by treating it as void against creditors, the title will still be in him. Suppose, on account of the benefit intended for Pool, the deeds to Griffin and Proctor are both treated as void. The title is in Shannonhouse, who is admitted to have acquired it without fraud, and Pool has only such an interest as can be reached in equity.
The question of estoppel does not arise. The defendant was not a party, or privy to either of the parties, in the deed by Proctor to the plaintiff, in which there is a recital of a deed by Proctor to one Ehringhaus or in the deed referred to in the recital. Estoppels must be mutual, and bind only parties and privies. One who is not bound by an estoppel cannot take advantage of it.
PER CURIAM. Judgment affirmed.
Cited: Ray v. Gardner, 82 N.C. 148; Shew v. Call, 119 N.C. 453; Allred v. Smith, 135 N.C. 446.
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