#### ALEXANDER M‘KAY v. HARRY S. WILLIAMS, et al.

Slaves held in trust to be divided among A.’s children “ who may be now living, and those who represent a deceased child, in proportion and after the same manner, as if they were claiming them as next of kin of their father,” are not liable to an execution at law. And in equity, a creditor under an assignment subsequent in date to the execution, but prior to the bill of the plaintiff in such execution, to subject the fund, is preferred.

A creditor whose execution has no lien upon a trust estate, can subject it in equity, only upon the ground that he cannot otherwise procure satisfaction. The jurisdiction is original; and as priority of time is regarded in equity, any other person having, bona, fide, a specific lien prior to the filing of his bill, is preferred to him.

But where the execution has a lien at law, the jurisdiction becomes ancillary, and the legal priority is not lost by seeking that relief.

Pherebee Williams, on the 20th day of November, 1827, conveyed to Joel Williams fifty-nine slaves in trust, to be divided into three equal parts: of which one-third part to be divided among the children of donor’s brother Samuel, deceased, who may now be living, and those who represent any deceased child or children, in the proportion, and after the same manner, as if they were claiming the said slaves, as next of kin, or distributees, under the statute of intestacy, of their father’s estate. One other third-part is given in the same words to the family of her brother Isaac, also deceased ; and the remaining third in the same words, to the family of her brother Joel, deceased. Then is added the following clause: “ and also upon the further trust to appropriate the hire and profits derived from the said slaves, to and among the children aforesaid, and grand-children, in the same proportion that they share in the slaves, ■ after deducting the reasonable charges and disbursements for managing this trust.” The trustee, Joel *399Williams, took possession of the slaves, and hired them out in the years 1828 and 1829. Samuel Williams, the brother of the donor, left living at his death, and at the date of the above-mentioned deed, four children; of whom Harry S. Williams is one, and the wife of the present plaintiff is another. The families of the other two brothers of the donor, Isaac and Joel, were very numerous; several of the creditors of the said Harry S. and of the plaintiff, respectively, (who had removed from this state,) levied attachments on the slaves in the hands of the trustee as garnishee; and the several children and grandchildren set up claims to shares of the slaves in conflict with each other. In February, 1829, Joel Williams, the trustee, filed his bill in the Court of Equity for Cumberland county, against all his cestui que trusts, and their attaching creditors, submitting to carry into execution the trusts, and alleging his inability to do so, by reason of the impossibility of determining what share each claimant was entitled to, and of the impediment to a division, by means of those attachments ; and praying that the accounts and divisions might, for his protection, be taken under the direction of the court.

December, 1836.

In that cause it was, on the 22d day of 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 *400hires and expenses of the slaves, and to report a just allowance to the trustee for his trouble and services, and all his costs 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 the 12th February, 1831, the master made the divisions as directed; and as to the share allotted to Samuel Williams’s children, he reported, “ that it remains undivided, to await the decree that may be made, touching the samethe master also reported on the accounts of the trustee. 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 the 16th day of 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 filing 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, the 22d of November, 1831, it was further ordered, that the clerk and master should sell the slaves allotted to Samuel Williams’s 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 creditor’s 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 the 2nd of January, 1832, for $6278; and made a report thereof, which was confirmed on the 16th of May, 1832; and the *401master was ordered to collect the money when the 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 the 18th day of 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, M'Neill, in trust, to secure the payment of certain debts in the deed mentioned, amounting to the sum of $1909; whereof the sum of $259, was due to certain creditors by judgment in Cumberland, rendered on attachments served on these slaves; and the residue, $1650, was due to certain other creditors in Tennessee; and if the fund should be more than sufficient to discharge those debts, then in 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 the 14th day of May, 1833, it was, upon the petition in the cause presented by H. S. Williams and M'Neill, 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 M'Neill; and that he pay the residue of the said H. S. Williams’s 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 M'Neill; he being entitled thereto, under and by virtue of the said assignment. The present bill was then brought on the 1st June, 1833, by the plaintiff, Alexander M‘Kay, against H. S. Williams, M‘Neill, Sonter, and the creditors in Tennessee, in which the fore*402going matters were charged; and also that M'Neill had received, or was about to receive from the clerk and master, 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 M'Neill, 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 be secured, by the said deed: and that said M'Neill 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 M'Neill 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, M‘Neill 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 plaintiff, of which M'Neill denied any knowledge at the time of the assignment. By the death of P. Williams, the principal creditor in Tennessee, the suit abated as to her; and the bill was *403taken pro confe ¡so, after advertisement as to the other creditors there resident. The cause being set down for hearing, was transferred to this court.

Badger, for the plaintiff.

Devereux, for the defendants.

Ruffin, Chief Justice.

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 Hen 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 *404a right to prefer which creditor 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 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, rior 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 brethern, 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 *405confirmed, the share allotted to this particular family, was undivided between them, and was directed to be still held by the trustee, expressly upon the old trusts, for them.

A trust-estate is not liable to execution at law, unless it be a pure and simple, one, in which nothing is to be done by the trustee.

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 trusts. 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 hispen 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 fieri facias ; 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. 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 *406enjoyment and possession of the property, and convey the legal estate upon his demand, which according to the rule of Brown v. Graves, 4 Hawks, 342, and Harrison v. Battle Dev. Equity, 537, approved in Gillis v. M‘Kay, 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 alto-ffether of the trust; or, at least, until those trusts be altered and reduced, by a decree of the court, or the acts oí the parties, to a state of purity and simplicity, in which the trustee holds only for one cestui que trust, or for one set of cestui que trusts, all claiming an equal and ascertained interest.

The cases of Brown v. Graves, 313; Bar-rismv. Bailie, 1 Dev. Eq. 5 v. M'Kaj, í7Jg^]^ep' proved.

Whether lfonetenSt ant in common of a trust estate, can he sold deí cxecu-lion, Qu.?

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 discuss’n§ t^ie 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 M‘Neill is entitled, as the share of H. S. Williams of the 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 lands upon the same trusts, with directions to sell them; and M'Neill 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, *407there will be a surplus applicable to the plaintiff’s demand in 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, beforementioned.

PeR Cukiam. Decree accordingly.