Leroy v. Dickenson.
From Beaufort.
A judgment fraudulently confessed to cover the' property of the debtor, shall be postponed to a judgment obtained bona fide after such fraudulent confession.
This was a bill setting forth that complainant, some time before the 14th of August, 1811, owning and holding two several bonds of Joel Dickenson, William II. Wil~ Hams and William Guthrie, each for the penal sum of S6,011 75, and each conditioned for the payment of S3,055 87á, endorsed and transferred the same to Josiah Collins, to whom complainant was indebted, under an agreement that the same, if collected, should be applied to the payment of the debt to Collins; that Joel Dickenson, being largely indebted, and being desirous to place his property beyond the reach of his creditors, on the 14th of August, 1811, fraudulently executed to William II. Williams and Jordan Sheppard a conveyance embracing in it all the property which he Joel had, to be void on condition tliat Joel Dickenson indemnified Williams mod Sheppard against certain debts for which they were responsible, and, among others, against the debt which complainant had assigned to Collins; that Joel Dickenson continued in possession of the property, which was -worth far more than the debts tor which Williams and Sheppard were responsible; that he exercised acts of ownership over it, notwithstanding a breach had been long made in the condition of the deed; that Jordan Sheppard died in Decern, ber 1811, having first, by his last will and testament, given and bequeathed nearly all his property to Joel Dick-enson, who was his son-in-law, “in trust to and for the use of Louisa Dickenson,” (wife of Joe?,) and authorizing Joel to sell the whole or any part of his estate for the use of Louisa D. and her heirs; and that Joel, designing to defeat his creditors, fraudulently combined with one Mar
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shall Dickenson, his kinsman, to effect his purpose. Accordingly Joel, immediately after Sheppard’s decease, took into his possession the personal property of Shep-an(] before probate of the will sold part thereof at public sale; and at the next term of the County Court the will of Sheppard was proven, and no executor being therein named, Joel Dickenson declined becoming administrator, and procured Marshall D. to become administrator, and joined as one of his sureties in the administration bond; and at the term of the County Court next following, Joel confessed a judgment to Marshall as administrator for §6,525 90, on account of the property of Jordan Sheppard, which Joel alleged he had made use of and sold previous to administration granted; when in truth the value of the property taken by Joel was much less than the amount of the judgment confessed.
The bill stated also, that Collins had obtained judgments on the bonds before mentioned, after the execution of this fraudulent contrivance between Joel and Marshall; but that the property, by collusion between the parties before named, was so hedged in and covered that the execution of Collins was unavailing: and among other matters prayed, that the judgment fraudulently confessed by Joel might be postponed to the judgment of Collins.
There were other matters alleged in the bill as a ground for the Court’s aid and interference, but the aboye presents the principal point m,ade in the case, and that to which the attention of the Court was more particularly called.
There was much evidence tiled in the cause, and so much as is here material will be found in the opinion of the Court, as delivered by the Chief Justice.
Tatxor, Chief Justice. —
One object of this bill is, to postpone a judgment confessed by Joel to Mfvrshal Dicken-son, to the complainant’s demand ascertained by judgment, against the former. The allegation of fraud in the. *225confession of the judgment, and in keeping it on foot to cover the property from other creditors, is abundantly 'established by the depositions in the cause» The circumstances disclosed are numerous, and of great variety of character, yet all conducive to the same result, and it is impossible to resist their united effect. Those which principally influence the judgment of the Court, will be briefly stated, though there are others of minor importance which have had some share in the formation of our opinion.
The judgment was confessed for upwards of áix thousand dollars, and purports to be founded on an account consisting of several items. One is a charge against Joel for the amount of purchases made at the sale; now the sale was upon twelve months credit, and it is improbable that Joel would expose himself to an immediate execution, for what he was not then liable. Besides, several of the purchasers ot unimpeached credit, show that they paid the amount of what they bought to Marshall himself. There is other evidence to the fact, tiiat some of the notes, given to Joel for purchases were in Marshall’s possession, and that some were transferred byhim after he administered. No satisfactory explanation is made why these sums were not applied to the credit of the judgment. There aré other items in the account, which at the date of the judgment Joel had not collected or applied to his own use; and one which, according to Buck’s deposition, Marshall had received the whole of. The charge of lumber from the mills, appears from one of the depositions to be unfounded, inasmuch as there was not more on hand than was, necessary for their repairs. Another strong evidence of the quality of this transaction arises from Green’s execution, which, after it was satisfied out of Joel’s funds, Marshall caused to be levied upon the house and lot. The charge for Williams and Joel’s note to May, is exposed to very serious suspicions. No charge was made fbr it by Sheppard against his sons-in-law, and it is rd> *226then to be inferred that he intended it as an advancement to his sons-in-law; for the note is produced cancelled, and without any assignment, nor is any security taken from them.
And there is direct evidence that Joel had declared his deliberate purpose to defeat the complainant’s claim, and the whole contrivance seems to be directed to that end. When to this are added, the relationship, intimacy and confidence subsisting between the parties; that Marshall, though succeeding to the trust held by Sheppard, allowed Joel the uncontrolled use of his property, the management of his vessels, and the direction of his mercantile concerns, without applying any credits to this judgment; the manner of confessing the judgment, by the plaintiff’s attorney under a power of attorney from the defendant; the apparent want of resources of Marshall when selected to administer; the disappearance of Sheppard’s estate, without any administration accounts being settled; to can come to no other conclusion than that the judgment was covinous. It must therefore be postponed to Leroy’s demand, and Marshall enjoined from proceeding on it as to Leroy.