Frank v. Robinson & Holt

Smith, C. J., (after stating the facts). The provision in the deed which requires the employment of the assignors, debtors, by the trustee, in disposing of the goods, and the payment for the services of eacli at the rate of $50 per month, while we are not prepared to say it vitiates and avoids the conveyance, is so unusual and so obviously for their benefit, while in detriment to the trust fund, that it furnishes evidence of a fraudulent intent, proper, with other facts attending the transaction, to be submitted to a jury. As the removal of the goods by the non-resident claimant, unless the Court interposes, might render the effort to secure them fruitless, even in the event of the plaintiffs’ successful prosecution of their action, it presents a case of possible irreparable injury, which warrants the judgment. There is not *33 an absolute interdict put upon the claimant, but he is only required to surrender so much of the property as will meet the judgment, or he is allowed to retain and dispose of all, upon giving an undertaking, properly secured, to pay the judgment, if upon the final hearing the creditor shall be declared to have the preferable right to have his debt satisfied therefrom. As the fund is under the control of the Court, and the result left in doubt, it will retain it, to await the determination of the controversy, on such terms as will be least onerous to the defendant, and yet sufficient for the plaintiff. The practice in this regard is well settled, and'we refer to but a single case, Morris v. Willard, 84 N. C., 203. We do not pass upon the question of fraud, but leave it to the verdict of a jury upon an issue framed to present it. The appellants also except to the exercise of the invoked jurisdiction, because the law gives a direct remedy, and the property, upon the allegations in the complaint, can be seized and sold. While it is true that property liable to final process, and fraudulently alienated by the debtor, is exposed to the creditor’s direct access in suing out execution, it is equally true that when he has obtained judgment and issued a fruitless execution, he may ask the Court to adjudge the fraud and pronounce the nullity of the assignment, so that a good title may be sold and full value obtained. Clark v. Bonner, 1 D. & B. Eq., 608; Bethel v. Wilson, Ibid., 610; and under the present practice all this may be done in one action. Bank v. Harris, 84 N. C., 206; Mebane v. Layton, 86 N. C, 571. There is no error, and this opinion will be certified to the Court below for its further action, according to The Code, §962. The appellants will pay the costs of the appeal. No error. Affirmed.