Mebane v. . Layton

Ruffin, J. By their demurrer, the defendants admit the demands of the plaintiffs; the existence of other creditors and claims against the debtor; his insolvency; and his covinous attempt to secrete his effects, and, with the cooperation of his mother and wife, to secure them for his own ease and comfort. It is difficult then to conceive of anything more that can be needed to entitle the plaintiffs to the relief they seek at the hands of a court of equity. If the two active creditors had sued for their own benefit only, a simple allegation of the insolvency of the debtor might have been, and in fact would have been deemed insufficient to support their action; for though thus insolvent, *574 he might still have possessed tangible property liable to be taken under execution, sufficient to satisfy their demands, and thus render a resort to the court of equity unnecessary. But suing as they do for the benefit of every creditor alike, an allegation of absolute insolvency, as existing at the date of the attempted perversion of his property and as still continuing, must suffice, as it is apparent that the fund perverted must be needed to satisfy all the demands against the debtor. And as his interest in the property sought to be reached is purely an equitable one, no other court is competent to give the needed relief. In Bank v. Harris, 84 N. C., 206, there was a careful review, by the present Chief Justice, of the rule and the reason hitherto adopted by the courts of equity in this state, not to aid a creditor in such cases, until he had exhausted all his legal remedies, by reducing his claim to judgment and issuing an exeéution thereunder; and as it was thought that the rule obviously grew out of the relations which the two courts of law aipi-squity then bore towards each other, so it was considered that it must cease altogether, now, that the functions of the two courts are consolidated, and committed to the superior courts.” Accordingljq it was held in that case, that it is not now necessary to have a judgment and execution, and a return of nulla bona, before invoking the aid of the court to set aside a conveyance, executed with the fraudulent intent to hinder and delay creditors. All the cases cited by counsel in support of this branch of his demurrer were referred to in that decision, and the conclusion arrived at as to the effect of the change of system is admitted to be a departure from the doctrine there laid down. Neither does the objection, that the plaintiffs have embraced in their actions demands founded on contract, and less in amount than two hundred dollars, hold good. The object of the action is not simply to enforce those contracts, *575 but to reach a fund of the debtor improperly converted into land, and the title taken to another. It is just the distinction taken in Murphy v. McNeill, 82 N. C., 221, where the jurisdiction of the court was upheld in an action to foreclose a mortgage, given to secure a debt less than two hundred dollars. The interest of the debtor in this land could not be sold under execution, as the title was never in him, and none but -a court of equity could ever reach it. And as was said in Fisher v. Webb, 84 N. C., 44, no part of the jurisdiction of the old court of equity has been conferred upon the court of a justice of the peace, so as to enable it to try any action heretofore solely cognizable in a court of equity. In Story’s Eq. Plead., § 285, it is said that an exception to the general doctrine of misjoinder is made, when the parties have one common interest touching the matter of the bill, although they claim under distinct titles, and have independent interests; and as an illustration, in the next section it is said that two or more creditors may join in one bill against their common debtor and his grantees to remove an impediment created by his fraudulent conveyance of his property. In Brinkerhoff v. Brown, 6 John., Ch. 139. Chancellor Kent ruled that different creditors might unite in one bill, the object of which was to set aside a fraudulent conveyance of their common debtor. It was so held also, in McDurmut v. Strong, 4 John., Ch. 687; Emerton v. Lyde, 1 Paige, 637, and Conro v. Iron Co., 12 Barb, 27, and by this court in Wall v. Fairley, 73 N. C., 464. Indeed in all these cases, the right of the creditors, affected by the fraud, to join in one action, seems to have been taken for granted, and the only question mooted, was, as to the right of a single creditor by suing alone, to acquire a priority for himself. In our opinion the court below erred in sustaining the *576 demurrer, and its judgment is therefore reversed; and judgment will be entered here overruling the same, and remand--ing the cause to the end that the defendants may have the opportunity to answer. Error. Reversed.