Hackney Bros. v. Arrington

*112 Smith, C. J. The only inquiry to be here made is as to the sufficiency of the plaintiffs’ affidavit to support the order for an examination of the defendant. In construing the provisions of the Code of Civil Procedure, § 264, and following, now contained, with some modification, in § 488, et seq., of The Code, in the light of previous practice which they were intended to supersede, Rodman, J., speaking on behalf of the Court, says: “ We think that the purpose of The Code was to give those remedies to a plaintiff only in case the defendant had no known property liable to execution.” McKeithan v. Walker, 66 N. C., 95. In Hutchison v. Symons, 67 N. C., 156, equally explicit, and almost the same language is used by Pearson, C. J.: “ The Court holds that the purpose of The Code was to give supplemental proceedings only in case the debtor has no property liable to execution, or to what is in the nature of an execution, viz: proceeding to enforce its sale.” In Weiller v. Lawrence, 81 N. C., 65, Dillard, J., uses this language: “ It was moved to dismiss upon the ground that the affidavit of the plaintiffs was insufficient to warrant the order of examination, in that whilst it negatived property in the defendants liable to execution, it did not negative the existence of equitable interests wlvich could be reached by proceedings to enforce a sale in the nature of an execution.” It was certainly necessary that the affidavit should be thus definite, as decided by this Court in McKeithan v. Walker, 66 N. C., 95, and Hutchison v. Symons, 67 N. C., 156. The same doctrine is reiterated and put in a more precise form in Hinsdale v. Sinclair, 83 N. C., 338, wherein the Judge last mentioned says: “ That to authorize the grant of an order of examination, these three facts must be made to appear by affidavit or otherwise, to-wit: the want of known property liable to execution which is proved by the Sheriff’s return of ‘unsatisfied;’ the non-existence of any equitable estate in land within the lien of the judgment; and the *113 existence of property, choses in action and things of value unaffected by any lien and incapable of levy.” And again in reiteration it is declared with emphasis in Magruder v. Shelton, 98 N. C., 545, that the construction of the statute must now be deemed “ settled ” and at rest. The appellant’s counsel rely on the amendment introduced in The Gode which annexes to the second paragraph of § 488 at its close, these words: “ And the judgment creditor shall be entitled to the order of examination under this subdivision, and under subdivision one, although the judgment debtor may have an equitable estate in land, subject to the lién of the judgment, or may have choses in action or other things of value unaffected by the lien of the judgment, and incapable of levy.” This addition, it is contended, was made to remove the necessity of any averment or proof of the debtor’s possessing property exposed to execution, preliminary to his undergoing examination., In reference to the effect and extent of this legislative change in the statute, we remark: 1. The very words of the section preceding are re-enacted in The Code in the form in which they appear in the Code of Civil Procedure, and this with the construction given to it by the Court. 2. There is nothing in the amendment dispensing with the allegation of the non-existence, so far as known, of property which could be subjected to execution. 3. In the absence of any evidence of a purpose to open the way to this examination into the financial resources of the debtor, when he had ample visible property to meet the demand and the kind of remedy sought was wholly unnecessary, it can hardly be supposed that such a result was intended, or it would have been clearly expressed, and not left to a strained inference. 4. In the cases referred to, one of the conditions of relief mentioned is an averment negativing the debtor’s having *114 any equitable estate in land subject to a judgment lien, yet not saleable under execution, and the amendment expressly applies to this, and dispenses with the averment. 5. The other kinds of property described, the possession of which must not obstruct the remedy, are such as are “ unaffected by the lien of the judgment, and incapable of levy.” In Hutchison v. Symonds, supra, the Chief Justice, after the sentence we have already extracted from the opinion, proceeds to say: “ And so if the debtor has property on which the creditor has acquired a lien, it must be shown either by a sale of the property, or by affidavit, that the property is insufficient in value to satisfy the debt; otherwise, the application for supplementary proceedings has no sufficient ground to rest on; for it does not appear that the debt will not be made out of the property bound by the execution, and so a resort to the extraordinary proceedings is not shown to be necessary.” And so one of the essential averments in Hinsdale v. Sinclair, already recited, is declared to be “ the non-existence of any equitable estates in land within the lien of the judgment.” Now, it is plain that the effect of the change brought about is to dispense with any allegation that there was no such .trust estate or interest in the debtor as is specified, and to expend it to other classes of property when no lien attaches, and which the officer cannot sell, in order to the payment of •execution in his hands. But it is nowhere indicated that it was the intent of the additional enactment to permit a creditor to have direct resort to the redress given upon an affida-vit that the debtor “has property which he unjustly refuses rto apply toward the satisfaction of the judgment against ¡him,” when there was ample property, real and personal, which could be appropriated by a sale under execution to the plaintiff’s demand, and to reverse the repeated rulings of this Court upon the point. If such a purpose existed, (and the result would be a very radical change in the law if it did,) *115 it was quite easy to give it expression, while the language used, very particular in its terms, says nothing which can fairly warrant such a deduction, and we cannot assent to the argument which, makes it. The general reasoning that has led to the ruling by which the statute is construed, and its true meaning arrived at, is based upon the previous analagous practice that prevailed in the Courts of Equity, and in order to its conformity thereto, of which, in the language of Dillard, J., “ it is in part a substitute,” and this will appear by reference to Frost v. Reynolds, 4 Ired. Eq., 494; Kirkpatrick v. Means, 5 Ired. Eq., 220; Wheeler v. Taylor, 6 Ired. Eq., 225, and other cases. The ruling of the Judge must therefore be affirmed, and it is so adjudged. Affirmed.