In that cause it was, on 22 November, 1830, ordered that a division of the slaves into three equal parts should be made by the clerk and master; the part that might be allotted to the children of Isaac Williams to be again divided into nine equal shares — one for each of his children or those representing them — and the same with respect to the share of Joel Williams' (deceased's) children; that the negroes allotted for those two classes of claimants should be delivered to the individual claimants, respectively, upon their giving bonds, respectively, for the forthcoming of the slaves to answer the further order or orders in the course, but that the third part allotted to the children of Samuel Williams, deceased, should remain in the hands of the trustee, Joel, without further division amongst these children, severally, and be hired out by the said trustee, subject to the further order of the court touching their final disposition, and it was referred to a master to state an account of the trustee with the trust fund for the hires and expenses of the slaves, and (400) to report a just allowance to the trustee for his trouble and services and all his cost at law, and these orders were declared to be made by consent and without prejudice to the rights and ultimate liability of any of the parties.
On 12 February, 1831, the master made the divisions as directed; and as to the share allotted to Samuel Williams' children, he reported "that it remains undivided, to await the decree that may be made touching the same." The master also reported on the accounts of the trustee. *Page 310 At the next term, May, 1831, the report as to the division of the slaves was confirmed, but the parties had leave to except to so much of it as related to the accounts.
The present plaintiff was a creditor by judgment in the court of Cumberland of the defendant Harry S. Williams, one of the four children of Samuel Williams, deceased; and in December, 1830, sued out a fieri facias thereon, on which the sheriff returned to March court, 1831, "that he had, on 16 February, 1831, levied the same on the defendant's interest in the part allotted to the children of Samuel Williams of the negroes belonging to the estate of Pherebee Williams, deceased." On this return the plaintiff has regularly issued writs of venditioni exponas from that time up to the filling of this bill, but nothing has been done on them, nor did the sheriff at any time interfere with the possession of the slaves by the trustee, Joel Williams.
At the next term of the Court of Equity, 22 November, 1831, it was further ordered that the clerk and master should sell the slaves allotted to Samuel Williams' children, on a credit of six months, and bring the proceeds of the sale into court for the further direction of the court; and that the creditors, by judgment or attachment of Harry S. Williams, should not sell any of the said slaves on execution, but might apply in that court for satisfaction out of the proceeds of the sale then ordered.
The master sold the negroes accordingly, on 2 January, 1832, for $6,278, and made a report thereof, which was confirmed on 16 May, 1832, and the master was ordered to collect the money when the (401) bonds should fall due; and the same was ordered to be divided into four equal parts, whereof Harry S. Williams was declared to be entitled to receive one-fourth part. The trustee, Joel Williams, was also ordered to pay and deliver to the master a balance then found to be in his hands, in cash and bonds, for the hires of the slaves, after making him all just allowances; and the master was directed also to collect those debts. On 18 October, 1832, Harry S. Williams, then and for some years before, residing out of the State, assigned all his interest in the said slaves so allotted to him or for his use, and in the proceeds of the sale thereof, and the funds to him in any wise belonging, under the said deed of his aunt, Pherebee Williams, and the decrees of the court in the said suit for or on account of the said slaves or their hires or profits to the defendant McNeill, in trust, to secure the payment of certain debts in the deed mentioned, amounting to the sum of $1,909, whereof the sum of $259 was due to certain creditors by judgment in Cumberland, rendered on attachments served on these slaves; and the residue, $1,650, was due to certain other creditors in Tennessee; and if the fund should be more than sufficient to discharge those debts, then in *Page 311 trust to pay a debt of said Harry S. to one S. Sonter upon judgment in Cumberland; and the residue, if any, to pay to maker of the deed.
On 14 May, 1833, it was, upon the petition in the cause presented by H. S. Williams and McNeill, ordered by the court that the master pay out of the share of H. S. Williams, of the fund in court, the sums due to the said attaching creditors, who are also provided for in the assignment to McNeill, and that he pay the residue of the said H. S. Williams' share of said fund, consisting of one-fourth of the proceeds of the sale of one-third part of all the said negroes, and a like proportion of the proceeds of the hires to the said McNeill, he being entitled thereto under and by virtue of the said assignment. The present bill was then brought on 1 June, 1833, by the plaintiff, Alexander McKay, against H. S. Williams, McNeill, Sonter, and the creditors in Tennessee, in which the foregoing matters were charged; and also that McNeill had received, or was about to receive from the clerk and master, (402) the sum so decreed to be paid to him, to apply it in payment of the debts, as by the assignment directed. The bill submitted to payment being made to the creditors by attachment in North Carolina, as they had acquired a specific lien on the property independent of and long before the assignment; but in respect of the other debts thereby secured, the bill insisted that the plaintiff, by force of his writ of fieri facias, and by keeping up writs of venditioni exponas, had a preferable legal right to satisfaction out of the said slaves, and then had it out of their proceeds; and that the said H. S. Williams could not assign the same, so as to defeat him, and that such assignment was void as against him. The bill further charged that the assignment was made by Williams, and accepted by McNeill, with a full knowledge of the plaintiff's judgment and executions, and with the view to defeat his right to priority of satisfaction, before the creditors secured or intended to send the fund to by the said deed: and that said McNeill intended to send the fund to the creditors out of the State, towards the satisfaction of their debts, in manifest fraud of the plaintiff's rights, although the plaintiff had given him notice not to do so. The prayer was that McNeill might be enjoined from thus paying over the money, or any part of the trust funds, and might come to an account thereof with the plaintiff, and first satisfy the debts to the plaintiff.
An injunction issued accordingly.
The defendants McNeill and H. S. Williams answered, and denied any actual intention to defeat the plaintiff's debt; and stated that the debts secured or intended to be secured by the assignment were true and just debts, and that the deed was executed solely for the purpose of securing and satisfying them; and insisted that it was effectual in law for that purpose, notwithstanding the judgment and executions of the *Page 312 plaintiff, of which McNeill denied any knowledge at the time of the assignment. By the death of F. Williams, the principal creditor in Tennessee, the suit abated as to her, and the bill was taken pro(403) confesso, after advertisement as to the other creditors there resident. The cause being set down for hearing, was transferred to this Court. The bill does not impeach the assignment as being fraudulent within the act of 1715, for want of a consideration, on account of the debts mentioned in it not being due. On the contrary, it assumes all of them to be just, and submits to payment of those upon judgments in this State, because they have a legal preference by reason of the prior lien of the attachments. In the ground of that submission, we think the pleader who drew the bill was mistaken, because, in our opinion, this interest of H. S. Williams was not subject to attachment. But for the same reason on which that preference is yielded, the bill insists that the plaintiff acquired a lien by his execution, which arrested the power of the debtor to assign this fund. Upon the correctness of this position the rights of these parties depend.
There is no doubt that this Court, considering an equitable right as a part of the property of a debtor, will make it effectual to the satisfaction of a creditor who has established his debt by judgment, and is unable to obtain satisfaction by execution at law; but this is not on the ground of any lien created by the execution on the equitable property of the debtor. On the contrary, it is upon the ground that there is no such lien; and that in consequence thereof, unless equity will decree a satisfaction, the creditor can have no other remedy. Since there is no lien, the debtor may assign for value, unless the object of the assignment be in reality and primarily to defeat the creditor, as if the purchaser have notice of the judgment debt, knows of the insolvency of the debtor, and that his object is to put the money in his pocket and defy the creditor. Edgill v. Haywood, 3 Atk., 356. But that is an intent that cannot be implied; nay, is repelled, when the assignment is to satisfy or secure another bona fide debt; because, until a specific lien be in some way created, a debtor has a right to prefer which creditor (404) he pleases. This is so even at law, and much more in equity, which regards all debts as alike in conscience. If therefore, from the nature of the property, the process of execution does not create a lien at law, the creditor must file his bill against the debtor and his trustee, to change the particular equitable property in this Court, which *Page 313 constitutes a lis pendens, as to the thing, and consequently restrains the debtor's alienation or, rather, keeps the property still liable in the hands of the assignee. Edgill v. Haywood; Hendricks v. Robinson, 2 John. C. C., 306. Until bill filed, any honest disposition by the debtor of his equitable property is sustained, and that for the payment of a just debt is apparently honest.
It is, however, otherwise when the property is subject to be sold under the execution at law, for the jurisdiction here then becomes ancillary to the law. The legal lien is not lost by the creditor being under the necessity of coming into this Court to clear the title of doubts or ascertain the precise extent and value of the debtor's interest; equity neither sets up nor destroys such a lien.
As the assignment in question here was made before the bill filed, and is not impeached for fraud, it must prevail, unless the plaintiff could have sold the negroes in question under his execution. The case may be confined to the view arising on that state of facts. Although it might be a material question whether the plaintiff did not lose the lien, as against these parties, by what afterwards happened; that is to say, by his not selling and suffering the negroes to be turned into money under the decree of the Court of Equity. But supposing his rights against this fund to be the same as against the negroes themselves, he cannot be preferred to the assignee, unless at law the negroes were subject to sale by the sheriff.
It is insisted that they were, first, because the legal title vested in H. S. Williams and his brethren, as tenants in common, of their share, upon the division made in February, 1831, under the order of November, 1830; but the contrary is quite clear. No conveyance by the trustee was made or directed, and when that general division was confirmed, the share allotted to this particular family was undivided between them, and was directed to be still held by the trustee, (405) expressly upon the old trusts, for them.
It is further insisted, secondly, upon the ground that after that decision the trust estate was within the act of 1812, and subject to be sold under execution against H. S. Williams, one of the cestui que trust. It is to be remarked here that all the rights of the plaintiff depend in this suit upon the soundness of this rule, as applied to the property in the State it was during the operation of his fieri facias, sued out from December, 1830, and returnable to March Court, 1831. All the executions since issued are writs of venditioni exponas, upon the levy of that fierifacias; and therefore the whole rests upon the effect that had at the time. We think it clear that the property was not then in a condition to be seized and sold at law. It was then subject to all the complicated trusts that ever existed under the deed of Pherebee Williams. *Page 314 Even the general division was not then reported, much less confirmed. The whole was liable then to be set aside, and the negroes allotted to this family, given to others of the cestui que trusts. Indeed, that division seems to have been made more for the convenience of the parties, and to relieve the trustee as to the possession of some of the slaves, than to conclude the rights, or for any other purpose, for to all the parties it was without prejudice; and the respective claimants had still to show, among themselves in families, what advancement from their several fathers they had received; and the shares of all were subject to the demands of the trustee for his services and disbursements on the trust property, according to the terms of the deed. But this was more particularly the case with respect to the allotment of slaves, in which H. S. Williams was concerned, for they were to be held by the trustee himself as such, subject to the original order of the court as to their distribution, none whatever having been then or previously made touching that share.
Those slaves were then plainly not held upon that simple, pure and clear trust, by which it was the duty of the trustee to admit the cestui que trust into the immediate enjoyment and possession of the (406) property, and convey the legal estate upon his demand, which, according to the rule of Brown v. Graves, 4 Hawks, 342, andHarrison v. Battle, 1 Dev. Equity, 537, approved in Gillis v. McKay, 4 Dev., 172, is necessary to bring the case within the act of 1812. This last case, indeed, arose upon the very deed now before us, and it obliges us to treat all interest of the cestui que trust under the deed as merely equitable rights, until the property came to those persons, divested altogether of the trust; or, at least, until those trusts be altered and reduced by a decree of the court, or the acts of the parties, to a state of purity and simplicity, in which the trustee holds only for one cestui quetrust, or for one set of cestui que trusts, all claiming an equal and ascertained interest.
The case, therefore, is against the plaintiff upon its particular circumstances at the time he sued the execution by which he supposes himself to have acquired a lien.
This cause, it is thus seen, may be decided without discussing the more general question whether, upon a trust for two or more, as immediate, equitable, joint-tenant or tenants in common, the interest of one of them can be sold under execution against him alone. The Court, therefore, deems it proper to leave that important point still open.
It appears by the pleadings and exhibits that the debts secured by the assignment amount to nineteen hundred and nine dollars, exclusive of that to Sonter, of which the particular amount does not appear. The sum to which McNeill is entitled, as the share of H. S. Williams of the *Page 315 proceeds of the sale of the slaves, is only fifteen hundred and sixty-nine dollars and fifty cents; a balance, therefore, will be still due on those debts. If this were the whole case, the bill ought at once to be dismissed; but the deed of H. S. Williams, which is exhibited, also conveys two tracts of land upon the same trusts, with directions to sell them; and McNeill has also received, or is entitled to receive, further sums as his assignor's share of the hires of the negroes. It does not appear what sums will come to the trustee from those sources, and it may be that, after satisfying the debts mentioned in the deed, there will be a surplus applicable to the plaintiff's demand in (407) this Court. Liberty is therefore given to the plaintiff to have an account stated of those debts upon the foot of the assignment, and also of the trust fund in the hands of the trustee, in order to ascertain whether there will be anything over and above those debts, as described in the deed. But if such a reference be not asked at or before the calling of the cause at the next term, the bill will then stand dismissed, with costs. In the meantime the injunction heretofore granted must be dissolved, so far as respects the sum of fifteen hundred and sixty-nine dollars and fifty cents, before mentioned.
PER CURIAM. Decree accordingly.
Cited: Burgin v. Burgin, 23 N.C. 163; McGee v. Hussey, 27 N.C. 258;Brown v. Long, 36 N.C. 193; Canady v. Nutall, 37 N.C. 268; Frost v.Reynolds, 39 N.C. 500; Presnell v. Landers, 40 N.C. 254; Bridges v.Mayo, 45 N.C. 173; Dixon v. Dixon, 81 N.C. 327; Love v. Smathers,82 N.C. 372.