The transcript showed the case made by the pleadings to be as follows: The plaintiff, as surviving executor of Willoughby Dozier, Jr., filed his bill in October, 1828, against the defendant, Philip Dozier, and against W. D. Barnard, and charged that said Willoughby, Jr., made his will and appointed the plaintiff and one Dennis Dozier the executors, who proved the same after the death of the testator; that said Dennis took into his possession nearly all the assets, which he wasted, and that, without accounting for them, he died in 1826 intestate and insolvent, and the said Barnard obtained administration of his estate; that the plaintiff, as surviving executor, had filed his bill in the Court of Equity against Barnard, and thereupon, in March, 1828, obtained a decree *Page 84 declaring that said Dennis was indebted to him in the sum of eighteen hundred and eight dollars and ninety-nine cents; but that Barnard had no assets of said Dennis, and had fully administered all that had come to his hands. The bill further charged that there were other debts or judgments at law to more than the value of the real estate of said Dennis in the hands of his heirs, and that the plaintiff could not get satisfaction of his said decree. It then charged that the defendant, Philip, married the daughter of said Dennis, and that upon the marriage he received by way of loan or parol gift several slaves from said Dennis, which he retained, and which were of value sufficient to answer the said decree; that Dennis was greatly indebted at the time of the loan or gift, and that the same was fraudulent against his creditors; but that the (97) defendant, Philip, insisted on his title, and refused to surrender the slaves that they might be sold for the plaintiff's debt. And the bill prayed a discovery and account and satisfaction out of the negroes, and to that end that process might issue against Barnard and the said Philip.
On this bill, process was not issued against Barnard, but against Philip Dozier only, who appeared and put in an answer.
It admitted that the plaintiff and the said Dennis were joint executors, as charged in the bill, and the death of the latter, and the administration of Barnard, and the suit against him, and the decree; but it denied all knowledge of the assets received by Dennis or of his administration of them, or that he wasted any of them or was indebted to the plaintiff as surviving executor, or otherwise, and required the plaintiff to prove those allegations. It also denied any knowledge of the assets of Dennis which Barnard received, or whether the plaintiff's recovery was just, or whether Barnard had fully administered, or not. It stated that Dennis was indebted to the defendant, and also to his wife, as their former guardian, and that in part payment thereof the defendant purchased one of the slaves mentioned in the bill; and that in 1818 the said Dennis gave by parol to the defendant, by way of advancement to his wife, a daughter of said Dennis, certain other slaves, which he took into his immediate possession, and has retained them ever since, claiming them as his own, and adversely to all other persons; and that at that time the said Dennis was not insolvent nor embarrassed with debt. The answer set forth the names of the slaves and their increase, and, as if the same were pleaded, relied on the statute of limitations.
Upon a replication to the answer, the parties took proofs as to the circumstances of Dennis Dozier at the time of the defendant's marriage, and other matters not material to state.
The court directed a reference to the master to take an account of the slaves, their number, value, and profits; and subsequently to take an *Page 85 account of the profits received by the defendant in the lifetime (98) of Dennis, of certain real estate of the intestate which he permitted the defendant to occupy, and to take an account of the debts due from said Dennis to the defendant and his wife.
The master reported the present value of the slaves to be two thousand six hundred and seventy-five dollars; their net profits, seven hundred and fifty-nine dollars; profits of land, one thousand and eighty dollars; making, together, four thousand five hundred and fourteen dollars; that Dennis owed the defendant and wife five hundred and ninety-one dollars and ninety cents; and that after deducting the same, the defendant had funds to the value of three thousand nine hundred and twenty-one dollars and ten cents.
The defendant excepted to the report, because the master charged him with the present value of the negroes instead of that at the time he received them, and because he was charged with the profits thereof, and because he was charged with the rents of the land, and because he was charged with the hires of the negro sold to him by the intestate.
The last exception his Honor, Judge Strange, on the last Fall Circuit, allowed, and overruled the others, and confirmed the report in all other respects, and thereupon decreed that the defendant should pay to the plaintiff the sum of two thousand two hundred and eighty-five dollars and eighty-five cents, being the principal and interest found due him in the decree mentioned in the bill, and also the costs of this suit. From that decree the defendant appealed to this Court.
There was no evidence in the record that any debt was owing from Dennis Dozier to the plaintiff, except the transcript of the former suit between the plaintiff and Barnard as administrator, and the decree therein made, as mentioned in the pleadings in this suit. In the former suit a reference was made by consent at the first term to the master to take the accounts. He reported to the next term the sum due to the plaintiff from the intestate, Dennis, to be $1,808.99. No account was taken of his assets in the hands of Barnard, his administrator, who had answered that he had none, but had fully administered. (99) The cause was set for hearing on bill and answer, and the report confirmed by consent, the plaintiff admitting expressly that Barnard had fully administered. Thereupon a decree was made by consent, as expressed, that the plaintiff recover the said sum of $1,808.99, to be levied of the assets of Dennis Dozier, deceased, if any there be, and that the plaintiff should pay the costs. The counsel for the defendant, without entering into the details of the proceedings in the Court of Equity, has insisted here that the decree is erroneous, upon two general grounds — the one, that the former decree is not evidence against the defendant; and the other, that Barnard is not a party to this suit, and that he ought to be a party. Upon both the Court is of opinion with the defendant.
At law, a fraudulent donee of goods is, after the death of the donor, liable to creditors for the value. He may be sued as executor de sontort, and, from the necessity of the case, he may be thus sued, where there is a rightful executor or administrator, because no act of the latter can render the goods assets in his hands. It may be yielded, also, that a parol gift of slaves to a child, which, in case of the donor's intestacy, is made by the act of 1806, an advancement, is fraudulent and void against the donor's creditors if he die without leaving other property sufficient to discharge his debts, and that, in respect of them, the donee would be deemed, at law, executor in his own wrong. There seems to be no reason to doubt that a fraudulent donee is responsible in equity to an equitable creditor of the donor, who cannot otherwise obtain satisfaction, for this Court must support rights, which are the peculiar creatures or subjects of the jurisdiction of equity. But it does so according to its own course. At law, an executor, in his own wrong, is sued as if he were executor, and may, therefore, be sued separately or jointly with the rightful executor. But he cannot be sued jointly with an administrator, because the law knows not of an administrator by wrong, nor of any mode of showing an administration but by the grant of letters by the proper legal authority. So, in equity, an administration can be shown only in the same way, and a liability as executor can be created only by charging a will and the appointment of the executor, and his undertaking the burden of executing the will. In the case of (104) such fraudulent gift, therefore, the rightful representative must be before the court, upon the general principle that all persons concerned in interest must be parties in this Court, and the donee may also be made a party, and is chargeable as having a fund which ought, in equity, to pay the debt, and is followed by equity in his hands. This Court does not know of an executor de son tort for the purpose of a remedy against him as such. But if it did, neither at law nor in equity, can the debt of the deceased debtor be proved against him by a judgment against the rightful representative merely. There is no privity between them. At law, where the suit is against the executor de son tort, he is supposed to be the executor, and it is incongruous to charge him upon the acknowledgment of, or proceeding against, another as being the person invested with the character given in the record to the defendant. *Page 87 It is equally so in this Court. The demand is presented here against the executor, and he is liable in the first instance if he have assets. The donee may be made a party for the purpose of making him liable in succession. But each of those parties has a right and, in such a proceeding, the opportunity of contesting the debt, and it is manifestly just that each of them should have both the right and the opportunity. There is no precedent of such a decree as that framed by the parties for themselves in this case. The jurisdiction here is primarily in personam, and if an executor hath not assets, the Court does not decree for the creditor, but dismisses the bill. If the executor have assets, the decree is, in respect of the possession of them, that he personally pay the debt in the first instance. But if he have not assets, he is in no degree liable to the plaintiff, is not his debtor, and the bill must be dismissed. If the plaintiff's demand arise upon an account or trust between him and the testator, that account may be taken, and the report upon it confirmed; but if the plaintiff will not proceed to take the account of the executor's administration, so as to fix him with assets, or if he proceed to take the account, and it is found thereon that he has no assets, the plaintiff cannot stand in the court, but the defendant is entitled to a decree dismissing the bill. It is argued that the statutes giving the (105) remedies at law against heirs, and on refunding bonds, have created a new rule at law, which equity will follow. By no means. Equity, before, gave relief against legatees in case of the insolvency of the executor, or against heirs, upon a failure of the personal estate, on such debts as the heir was liable for; and that relief was adequate upon a bill against all those parties. The statutes may have the effect of rendering the legatees liable in equity, upon the ground of the refunding bonds, and the duty of the executor to deliver over the estate, without an insolvency of the executor, and as if he were insolvent. But, as to the mode of proceeding, or the frame of the decree, the rule at law, introduced by the statute, ought not and cannot affect the rule of this Court. Doubtless, upon discovering the insolvency of the executor, or that there are no personal assets, the plaintiff, in a suit against the executor alone, may, by an amendment to his bill, or by supplemental bill, bring in the legatees or the heir; but when they come in, the plaintiff's demand is open to be contested by them, and must be proved as ab origine against them. But if the plaintiff will bring on his bill to a hearing against the executor, and have it dismissed as against him, although it be dismissed upon the ground that he has no personal assets, he can never afterwards found upon that decree against himself a proceeding to charge other persons separately, and by a distinct suit, with a demand claimed in the former suit. The decree in the case before us was, no doubt, drawn up in reference to the proceedings at law, and the *Page 88 parties hoped to sustain it by an analogy to the legal liabilities. But, even at law, the executor, as a necessary party, is kept in court until the heir or legatee discharge him by a plea which admits his insolvency or full administration. Here no process was sued against Barnard in this bill, which cannot be connected with the former one, as the scire facias is with the judgment on which it is issued. But the decisive thing here is that the decree in the suit against Barnard is, in effect, and substantially, notwithstanding its formal phraseology, a decree to dismiss, and dismissing that bill at the plaintiff's cost. Besides, there is a (106) marked difference between the case of an heir or legatee and that of a donee. The two former receive their estates after the death of the debtor and as a part of his estate. They are liable to creditors, although the executor receive sufficient assets, provided he is insolvent, or the creditor should otherwise be prevented from getting satisfaction from him. But a donee does not claim the goods as a part of the deceased debtor's effects. He is liable in respect of the fraud only; and if the donor left sufficient estate, either real or personal, to pay all his debts, there was no fraud, but the goods passed to the donee, not only against the donor and his heir or executor, but also against the donor's creditors. The donee, therefore, must have the right of contesting the debt, and is not confined to the allegation that the judgment or decree wasper fraudem, and also the right of showing assets descended to the heir or come to the executor. Until they are exhausted, the donee is not chargeable, and those persons are necessary parties to an account of those assets. Besides, the executor may get assets in future, out of which the donee should be made whole for what he would have now to pay, and that he may have direct relief therefor the executor should be a party to, and concluded by, the decree against the donee.
It is said that the bill is sustainable upon the common equity on which the court assists judgment creditors against funds of the debtor in the hands of another. But this plaintiff has been already shown not to be a judgment creditor or, what is equivalent thereto, a creditor by decree of this Court. The decree gave him no relief. It professed to declare one fact in his favor — that he was a creditor of the intestate, but, upon his own admission, states on the face of it that the only defendant to his suit was not liable to pay that debt. The bill was dismissed against that defendant, and the plaintiff allowed to have satisfaction out of the assets of the intestate, if there be any; that is, that the plaintiff might sue anybody else and get his money, if he could. But, in cases to which the principle of equity alluded to applies, the debtor must be a party, as well as the possessor of the fund. In such cases, too, the justice of the debt is not an inquiry for such possessor; the fund is not his, (107) but the debtor's, and he has no interest in the question. If the *Page 89 possessor claim the effects under a conveyance alleged to be fraudulent, then the existence of the debt is to be proved, as in other cases in which the question of fraud arises. The plaintiff must show himself a creditor by judgment or decree, entitled to take advantage of the statute, 13 Eliz., but is not bound to reprove the debt as to its origin or amount, unless the possessor allege and show prima facie that the judgment itself was a fraudulent contrivance to defeat a previous gift. But, as in the case before us, there was no decree which could even affect an heir or legatee, and if there had been, as this defendant does not stand in privity with the party to that suit, what was done in that suit does not prove the debt against any person (unless possibly Barnard himself) and is not evidence to any purpose against this defendant.
The plaintiff might have moved before the hearing to bring in Barnard, and thereupon to take an account of the assets; and it is not usual to dismiss a bill for the want of parties in the first instance. If that were the sole ground for reversing the decree, the cause would, upon the reversal, be ordered back, with liberty for the plaintiff to move such proceedings. But the plaintiff brought his cause to hearing, without any proof whatever of his demand as against this defendant, and without any allegation in his bill on which he could have offered such proof, the bill relying specifically on the decree as conclusive. He has, therefore, failed to establish any debt of the intestate, Dennis Dozier, and for that reason the bill ought to have been dismissed on the hearing. For the same reason, the decree must be reversed; and this Court, proceeding to give such decree as the Court of Equity ought to have made, must dismiss the bill, with costs in both courts to be paid by the plaintiff.
PER CURIAM. Decree reversed.
Cited: Bryant v. Green, 38 N.C. 170; Bridgers v. Moye, 45 N.C. 173;Brittain v. Quiett, 54 N.C. 330.
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