Opinion
(June Term, 1846.)
Where an insolvent debtor, in filing his schedule, only surrenders his interest in certain property conveyed by a deed in trust, and the jury, upon an issue, find the deed fraudulent, he must be imprisoned until he makes a surrender of the whole property so conveyed.
APPEAL from CHATHAM Spring Term, 1846; Settle, J.
C. Manly for plaintiff.
McRae for defendant.
This was an issue of fraud, made upon a capias ad satisfaciendum under section 10 of the act for the relief of insolvent debtors, Rev. Stat., ch. 58. It appeared that the defendant had filed a schedule and given notice as required by law, which schedule was in the following words: "All my interest, if any, in and to all the accounts on the blacksmith's book for work done for sundry individuals, and which is in the possession of and my interests therein assigned to Samuel Crutchfield. (286) Given under my hand," etc. The plaintiff filed the following specifications, which were the only issues submitted to the jury:
1. As a blacksmith, the defendant has many accounts due to him, on a book kept by S. H. Crutchfield, which he has not surrendered.
2. He had made a fraudulent transfer of these debts to defeat the plaintiff's claim.
Evidence having been offered on both sides as to the fraudulent nature or bona fides of the transfer of the accounts to Crutchfield, his Honor charged the jury that if they believed the plaintiff's evidence they would find for him; if the defendant's for the defendant.
The jury found a verdict for the plaintiff, whereupon the court considered and adjudged that the defendant James Self be imprisoned until a full and fair disclosure be made. The defendant then appealed to the Supreme Court.
The defendant's schedule was as follows: "All my interest, if any, in and to all the accounts on the blacksmith's book for work done for sundry individuals, which book is in the possession of and my interest therein assigned to Samuel Crutchfield." When the issue of fraud came to be tried, the plaintiff offered evidence to prove that the assignment to Crutchfield was made without any consideration. The judge charged the jury that if they believed the plaintiff's evidence they should find the issue in his favor. The jury thereupon found the issue in favor of the plaintiff. The defendant then insisted that the finding of the jury was altogether immaterial, and he was, notwithstanding the verdict, entitled to take the insolvent oath and be discharged, as he had, after his arrest, filed a schedule of all his interest in the said shop accounts, which interest he insisted would legally be transferred to the sheriff, as his assignee, by force of section 10 of the statute. The judge was of a different opinion; and he ordered that the defendant should be (287) imprisoned until he made a full and fair schedule of his property. From this judgment the defendant appealed. The counsel for the defendant now insists that this case is distinguishable from Adams v. Alexander, 23 N.C. 501. He says that in that case only the resulting trust of a fund by a fraudulent deed of trust was included in the schedule. But here (he says) the defendant has scheduled all his interest ( if any) in the shop-book and accounts. And the jury having found that the assignment of the book and accounts to Crutchfield were fraudulent and void, now the entire interest in the book and accounts would pass to the sheriff by force of this schedule and the statute, disencumbered of Crutchfield's claim. We do not think that this argument is solid. The statute does not merely, upon the finding of the fraud by the jury, vest in the sheriff the property in respect to which the fraud has been found. Only those interests particularly scheduled vest in the sheriff, or accrue to the benefit of the creditors, and hence the necessity of a new schedule, after fraud found. Alexander, in the case cited, made a new schedule after the verdict, in which he omitted to mention the assignment, which had been found by the verdict to be fraudulent. And we think that the defendant must make a new schedule, and include in it the shop-book and accounts, omitting the assignment to Crutchfield, which the jury have found to be a fraudulent assignment. The judgment must be
PER CURIAM. Affirmed.
Cited: Edwards v. Sorrell, 150 N.C. 717.
(288)