Opinion · Supreme Court of North Carolina

Davis v. . Garrett

Davis v. . Garrett, 25 N.C. 459 (N.C. 1843)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1843-06-05
Topic
general

Rufpjn, C. J. Very much' for the reasons given in the full and satisfactory argument of the counsel for the inter-pleaders, the court is of opinion, that the judgment should be affirmed, indeed, we think, that the interest of the wife in' the negroes is not the subject of attachment at the suit of the husband’s creditors; because no specific and tangible property can be attached, which cannot be sold under the execution, after judgment obtained. And we are of opinion, as stated in the argument, that the purposes of the trust absolutely demand, that the legal estate should vest in the trustees ; and, therefore,-that the property cannot be sold under execution, so as thereby to divest the trustees of their estate or any part of it, in the present state of the family. However, that question does not arise here cm the record', as it stands; though we have thought it proper to notice it, in the hope of preventing unprofitable and vexatious litigation.

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Cited by
3 opinions
DAVISv. GARRETT,25 N.C. 459(1843)
JOHN C. DAVISv. MARTIN R. GARRETT.
Supreme Court of North Carolina
(June Term, 1843.)
1. No specific tangible property can be attached, which cannot be sold under the execution after judgment obtained.

2. Where an estate is vested in trustees, and the purposes of the trust require that the legal estate shall remain in them, the property so conveyed cannot be sold under execution, so as thereby to divest the trustees of their estate, or any part of it.

3. The owner of property attached is not obliged to interplead, though he may do so for the sake of convenience. A sale under an execution, issuing upon a judgment on an attachment, only passes the right of the defendant in attachment.
APPEAL fromBattle, J., Fall Term, 1842, of WARREN.

This was an action of debt upon a note executed by the defendant to the plaintiff, and was commenced by original attachment, which was levied upon the defendants interest in four negroes, and returned to Warren County Court. At the term to which the attachment was returned, William Burt and John A. Burt filed their petition in writing, therein setting forth a claim to seven-eights of one of one undivided fifth part of the slaves, as trustees for the children of the defendant Garrett. In the Superior Court an issue was made up between the plaintiff and the said petitioners, to determine what interest the latter had in the slaves levied upon. And upon the trial of the said issue it appeared that some time in 1833, William Burt, Sr., died, leaving a last will and testament in writing, which was duly proved and recorded. A copy of the material parts of the said will, which was made and proved in 1823, is as follows:"Item. I give in trust to my sons, William Burt and John A. (460) Burt, the following property, that is, three negroes, Jesse, Henry and Rosina, now in the possession of my daughter Lucretia A. Garrett, also one equal part of my estate, not otherwise given away, at the death or marriage of my wife Salamith Burt; the above property to be under the entire control of my two sons named above, and to be managed by them as in their judgment will be most conductive to the mutual benefit and interest of my daughter Lucretia A. Garrett and her children; and as the children come of age or marry, that the property so managed shall be equally divided between her and her children, and that at her death her part thereof should be equally divided between her surviving children.Item. It is my will and desire that my two married daughters, Salamith Sims and Lucretia A. Garrett, should in the division of my estate of negroes, stock, furniture, etc., have so much given them, as to make their negroes now in their possession of equal value with their other sisters' negroes, and the property so given to come under the same regulations and restrictions as their other property before given.Page 312Item. It is my will and desire that all my property, not specifically given, should be kept together and managed for the mutual interest and benefit of my wife and three daughters, Elizabeth, Ann, and Harriet D. Burt, and my son John A. Burt, and as they come of age or marry, that the above property should be equally divided between my wife and four children above named, with this reserve, that my son John A. Burt is to have only an equal part of my negroes, with one horse of his own choosing out of all my stock, and that at the death or marriage of my wife her part of the above property to be equally divided between my five daughters or their surviving children.Item. It is my will and desire that all my land in Halifax County should be sold, and the proceeds divided between my five daughters, under the same regulations and restrictions as their other property."

The petitioners are the sons of the testator, and the William and John A. Burt mentioned in the said will — and Lucretia A. Garrett, also mentioned in the said will, as the daughter of the testator, (461) is the wife of the defendant Garrett. The slaves levied upon are those which fell to the widow of the testator in the division, which was had between her and her four children, as directed in that part of the will where the testator disposes of his property not specifically given away. The testator, at the time of making his will, had five daughters, of whom Mrs. Garrett was one. The widow of the testator died a short time before the attachment was sued out, and at that time Mrs. Garrett had seven children. Upon the trial of the issue, his Honor instructed the jury that seven-eighths of one-fifth of the slaves levied upon belonged to the petitioners as trustees for Garrett's children, and were not liable to the satisfaction of the plaintiff's recovery. The jury found a verdict in conformity to this opinion of the Court, and judgment having been rendered accordingly, the plaintiff appealed.
No counsel appeared for the plaintiff in this Court.

(466)Edward Hallfor the petitioners.
RUFFIN, C. J.
Very much for the reasons given in the full and satisfactory judgment of the counsel for the interpleaders, the Court is of opinion, that the judgment should be affirmed. Indeed, we think, that the interest of the wife in the negroes is not the subject of attachment at the suit of the husband's creditors: because no specific and tangible property can be attached, which cannot be sold under the execution, after judgment obtained. And we are of opinion, as stated in the argument, that the purposes of the trust absolutely demand that the legal estate should vest in the trustees; and, therefore, that the property cannot be sold under execution, so as thereby to divest the trustees ofPage 313their estate, or any part of it, in the present state of the family. However, that question does not arise here on the record, as it stands; though we have thought it proper to notice it, in the hope of preventing unprofitable and vexations litigation. For, although the trustees have interpleaded for seven-eighths only of this share of the negroes, that will not conclude them as to the other eighth; since the owner is not obliged to interplead, though allowed to do so for convenience, and the sale under the execution only passes such right as the defendant in attachment has in the thing attached or sold.

PER CURIAM. No error.Cited; Stein v. Cozart,122 N.C. 282;Electric Co. v. Engineering Co.,128 N.C. 201;Johnson v. Whilden,166 N.C. 110.

(467)