Barnard
v.
Gregory

Supreme Court of North CarolinaDec 1, 1831
14 N.C. 223 (N.C. 1831)

(December Term, 1831.)

One who sets up a claim to goods of an intestate, under a fraudulent conveyance, and thereby injures the sale of them, does not render himself an executor de son tort.

DEBT upon a single bond; and on the trial before his Honor, Martin, J., at CAMDEN, on the last circuit, the only question was upon the plea of ne unques executor. To make the defendant an executor of his own wrong, the plaintiff proved that the sheriff having an execution, the teste of which overreached the death of Roberts, levied it upon a negro in his possession at his death; that the defendant at the sale produced an unregistered bill of sale for the same negro and claimed title; that the slave, in consequence of this claim, went at a small price, and that the defendant paid the purchaser an advance upon his bid, and took a bill of sale from the sheriff to himself. The plaintiff then offered evidence tending to prove that the defendant's bill of sale from Roberts was fraudulent, and contended in that case that the defendant by forbidding the sale, and causing the negro to sell for less than its value, had made himself an executor of his own wrong. But his Honor, being of a different opinion, directed the jury to find for the defendant, and the plaintiff appealed.

Kinney for plaintiff.

Iredell for defendant.


An executor of his own wrong is defined to be a person who, without any authority intermeddles with the estate of the deceased, and does such acts as properly belong to the office of an executor or administrator. (Went. Off. of Ex., 171.) And by statute 43 Elizabeth, ch. 8, he is declared to be an executor of his own wrong, who holds any goods of, or who owes any debt to the intestate, for which he holds a fraudulent release or discharge, and without such valuable consideration as shall amount to the value of the same goods of debts or thereabouts.

But I am not aware that it has ever been adjudged that a (224) person was an executor of his own wrong who has not intermeddled with the estate of the deceased, or who does not hold any of his estate in his hands, but who only sets up a claim against the estate, although that claim may not be a valid, but in truth a fraudulent one. This may have been the defendant's case, but it has not been proved. It is not stated, although probably the fact was so, that Roberts' estate was insolvent. Nor has it been made to appear that the defendant's unregistered bill of sale was fraudulent. To be sure it appears that he had not all confidence in it when he purchased the title of the person who bid off the negro. Be that as it may, I think the judge did not err when he decided that, although the bill of sale was fraudulent, and although the defendant forbid the sale, claiming under it, and thereby caused the property to sell for a less price, yet that did not constitute him an executor of his own wrong.

PER CURIAM. Judgment affirmed.