Opinion
(Spring Riding, 1805.)
If a conveyance be made to defeat an expected recovery in a suit, it will not be deemed fraudulent to defeat creditors, should the recovery not take place.
BRADY was sued by Worsley, and was apprehensive of a recovery. Ellison represented to him that the plaintiff was likely to recover, and that Brady and Ellison agreed that Brady should convey to Ellison his land, which Ellison should reconvey, if Worsley should not obtain judgment; but if he should, that then he should convey to Brady's children. Worsley was nonsuited, and Ellison refused to reconvey the land.
If Worsley was a creditor, the conveyance intended to defeat him was a fraudulent conveyance, and an assumpsit by Ellison to restore the lands was void. The act of Assembly says the contract shall be valid between the debtor and his grantee; and why? To deter the debtor from the attempt, by placing him in the power of the grantee. This obstacle to the attempt would be completely removed if the plaintiff could legally bind himself to restore the property or its value, and the debtor could practice a fraud on his creditors without the least risk, for after he had succeeded in defrauding his creditors the law would interfere in his favor and enforce the returning of his property by the vendee.
If Worsley, however, was not a creditor, then the conveyance is not fraudulent, and there is no legal objection to the contract which the plaintiff has sued on.
Verdict for plaintiff.
NOTE. — Smith v. Bowen, ante, 296.
Cited: Jackson v. Marshall, 5 N.C. 331; Dobson v. Erwin, 18 N.C. 575; Bank v. Adrian, 116 N.C. 543.
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