Williamson v. Bedford

Full title: DOE ON DEMISE OF WILLIAMSON v. JONAS BEDFORD

Court: Supreme Court of North Carolina

Date published: Aug 1, 1849

32 N.C. 198 (N.C. 1849)

Opinion

August Term, 1849.

Where a party claims as purchaser under an execution issuing from a court of equity, and alleges that the other party claimed under a deed, in fraud of the execution creditor, he must show the decree of the court, as well as the execution, and, to make the decree evidence, it is requisite to have the bill and answer and so much of the pleadings and orders as would show that the decree was pronounced in a cause properly constituted between parties.

APPEAL from the Superior Court of Law of RUTHERFORD, at Fall Term, 1848, Manly, J., presiding.

The action was tried in November, 1848, and the lessor of the plaintiff claimed under a sale by the sheriff on a fieri facias against the lands of Squire Simmons, purporting to be (199) issued for the sum of $2,227, which Benjamin Logan recovered from Simmons by a decree of the Supreme Court in a suit in equity, lately pending therein between those parties and others. The plaintiff offered in evidence a certified copy of the execution and of the final decree, as stated in the execution, without the pleadings or any other proceedings in the cause. Upon objection made, the court held the evidence insufficient, and the plaintiff submitted to a nonsuit and appealed.

Guion and Bynum for plaintiff.

Baxter for defendant.

RUFFIN, C. J.

As the defendant in this suit was not the defendant in the execution, and it did not appear that the former came in under the latter after the lien of the execution attached, it must be assumed that the plaintiff alleged a prior purchase by Bedford in fraud of the creditors of Simmons. Consequently, it was necessary that the plaintiff should produce the decree, as well as the execution, in order to establish that Logan was a creditor ( Rutherford v. Raburn, ante, 144); and in order to make the decree evidence, it was, of course, requisite to have the bill and answer and so much of the pleadings and orders as would show that the decree was pronounced in a cause properly constituted between parties.

PER CURIAM. Judgment affirmed.

Cited: Lyerly v. Wheeler, 33 N.C. 289; Stallings v. Gulley, 48 N.C. 346.

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