{
  "id": 8693730,
  "name": "N. A. JACKSON and others v. S. J. SLOAN and others",
  "name_abbreviation": "Jackson v. Sloan",
  "decision_date": "1877-01",
  "docket_number": "",
  "first_page": "306",
  "last_page": "311",
  "citations": [
    {
      "type": "official",
      "cite": "76 N.C. 306"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "17 N. Y. 300",
      "category": "reporters:state",
      "reporter": "N.Y.",
      "case_ids": [
        2019336
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ny/17/0300-01"
      ]
    },
    {
      "cite": "1 Brock. 267",
      "category": "reporters:federal",
      "reporter": "Brock.",
      "opinion_index": 0
    },
    {
      "cite": "21 Miss. 521",
      "category": "reporters:state",
      "reporter": "Miss.",
      "opinion_index": 0
    },
    {
      "cite": "63 N. C. 297",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277179
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/63/0297-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 500,
    "char_count": 10230,
    "ocr_confidence": 0.429,
    "pagerank": {
      "raw": 1.6999884357264385e-07,
      "percentile": 0.7006331257150513
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    "simhash": "1:ec848ab8aeeb118b",
    "word_count": 1745
  },
  "last_updated": "2023-07-14T21:21:57.000998+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "N. A. JACKSON and others v. S. J. SLOAN and others."
    ],
    "opinions": [
      {
        "text": "Bynum, -T.\n(After stating the facts as above.) Upon this\u00bb state of facts tbe plaintiff demands that the defendant Sloan, be enjoined from selling the \u201cStowesville Factory \u201d and b& compelled first to look to the fund arising from the sale of\" the \u201cSpring Shoal\u201d tract for the satisfaction of his judgment. The question is whether the plaintiff is entitled to this relief. From the admissions expressed and implied in the-answer, -we think he is.\nWhat are the obstacles preventing the Sheriff' from paying out the \u201c Spring Shoal\u201d fund in discharge of the executions under which that property was sold, does not appear. As from the defendant\u2019s not denying it, we are to assume that this sale was in part at his instance and under-his judgment, it was his duty to explain why he abandoned his claim to the satisfaction of his debt out of that fund ancfi now resorts to another. It may be that in due course of disbursement by the Sheriff it would have satisfied the defendant\u2019s judgment and disencumbered the land purchased by the* plaintiff. The sale of the \u201cSpring Shoal\u201d having been made at the instance of the defendant and for the satisfaction of his debt, it is certainly not inequitable to restrict', him to that fund until it is exhausted, without reaching and! discharging his judgment. For otherwise the rights of the\u00bb subsequent purchaser of the \u201c Stowesville Factory,\u201d would be-necessarily affected by the continuing lion of a judgment-which the. fund ought to have discharged.\nTbe ground upon which the defendant resists an injunction against his selling the \u201c StoAvesville Factory,\u201d is the alleged fact that the \u201cSpring Shoal\u201d is the separate property of J. Stowe and primarily liable for his separate debts,, and the further fact that the fund arising from that sale is; insufficient to pay his debt according to the priority of lien. Roberts v. Oldham, 63 N. C. 297.\nIf these two facts clearly appeared to the Court, it would be a sufficient answer to the application of the plaintiff!. But the complaint specifies tlie judgments which are a lien \u25a0\u2018upon the \u201cSpring Shoal,\u201d whether considered as firm or \u25a0separate property and shows therefrom in detail that the fund is sufficient to discharge all the liens prior to and in\u2022cluding the Sloan debt. The answer to this by the defendant is general. It neither denies the particulars set out, nor \u2022specifies a single judgment in addition to those named by the plaintiff, which constitutes a lien prior to his own upon \u25a0-either the firm or separate property of J. and E. B. Stowe. And whether the \u201c Spring Shoal \u201d fund is sufficient to reach .\u00a1and pay his judgment, can be best ascertained by the actual -disbursement of that fund according to the legal priorities -of the claimants.\nIt is reasonably clear from the whole case that this fund will discharge the Sloan judgment all or in part. This judgment against the firm is a lien both upon the partnership and separate property with this difference in equity, \u2022that the partnership is the primary and the separate property the secondary fund for the payment of a firm debt. If therefore it had clearly appeared that the \u201cSpring Shoal\u201d \u25a0was the separate property of J. Stowe and that the defendant with others had not in the first instance resorted to and sold fit for the payment of his debt, there is no principle upon which the Court can compel the defendant to seek satisfaction out of a secondary instead of the primary fund, to-wit; the \u201cStowesville Factory,\u201d although the subsequent purchaser -should be discommoded by its sale. But the answer to the \u2022complaint does not sufficiently negative the allegation that \u25a0the \u201c Spring Shoal\u201d was the property of the firm. Assuming then that both the \u201cStowesville Factory\u201d and the \u201cSpring Shoal\u201d were .partnership property the rule of equity is, that -when one creditor can resort to two funds for. the satisfac-. \u25a0tion of his debt, and another to one only of the funds, the \u25a0former shall first resort to the fund upon which the latter ihas no claim, as that by this means of distribution both may be paid. And it is an analagons principle of equity that where a debtor whose,lands are eneumbered\u2019by a judgment\u2019 lien sells .one portion of it, the creditor who has a lien upon \u25a0that.which.is sold aud upon that which is unsold, shall be-compelled to take his satisfaction out of the undisposed of' land, so that thus the creditor and the purchaser both may be-sa ved. Rollins v. Thompson, 21 Miss. 521 ; Russell v. Howard. 2 McL. 489 ; Alston v. Munford, 1 Brock. 267 ; Herman on Ex. \u00a7 224. But this however is never done when it trenches-on the rights or operates to the prejudice of the party entitled to go upon both funds. Meech v. Allen, 17 N. Y. 300 ; United States v. Duncan, 4 McL. 607 ; McCulloch v. Dashiell, 1 Harris & Gill, 96.\nNo appreciable injury to the defendant can arise here, for his lien extends to both funds which are amply sufficient to-secure his debt. He can lose nothing then by awaiting the legal disposition of the \u201cSpring Shoal\u201d fund before resorting to the factory property. The delay, if it operates as such, is-an incident common to the complications of a large insolvent\u2019 estate and - cannot ordinarily be avoided. \"Whether the plaintiff is pursuing the speediest way to disencumber his purchase and get a good title instead of subrogating himself' to the rights of the defendant by the purchase and assignment of his judgment, it is unnecessary to inquire.' As the-plaintiff has with notice and voluntarily purchased and put\u2019 himself in his present situation and the defendant is-in no default, the latter ought not to be subject to any costs, \u25a0 or charges in or about this proceeding. Therefore before an, injunction -is allowed the plaintiff must give bond to indemnify and save harmless the defendant-Sloan against any and all costs of .this suit and any loss which may result from, granting-the-injunction. Subject to these conditions the-plaintrff is entitled to an injunction restraining the defendant S. J. Sloan from selling the \u201c Stowesville Factory\u201d property. until an account is taken of the fund in the hands of the Sheriff of Gaston County and the judgments which constitute a lien thereon, and the disbursement of the fund-according to the priorities of the judgments.\nThere is error. Judgment reversed and cause remanded to be proceeded with in accordance with this opinion.\nPer Curiam. Judgment reversed.",
        "type": "majority",
        "author": "Bynum, -T."
      }
    ],
    "attorneys": [
      "Mr. J. W. Hinsdale, for plaintiff.",
      "No counsel for defendants."
    ],
    "corrections": "",
    "head_matter": "N. A. JACKSON and others v. S. J. SLOAN and others.\nLien of Judgment -- Sale of Property Subject to Lien by Judgment Debtor \u2014 Injunction.\n1. Where a debtor whose real estate is encumbered with a judgment lien sells a portion of it. a judgment creditor who has a lien upon the whole land is compelled to exhaust the unsold portion for the satisfaction of his judgment before resorting to that which has been sold.\n2. This however is nut to be done when it trenches upon the rights or operates to the prejudice of such judgment creditor.\n3. So where A obtained judgment against two partners and under execution issued thereon certain real estate (alleged to be the property of the partners', which allegation was not sufficiently denied in the answer) was sold by the Sheriff who held the proceeds of sale; Held, in an action by B (who had purchased from the partners certain other real estate <m which the lien of A\u2019s judgment rested) to restrain A from selling under his execution the land purchased by plaintiff, that A should be restrained from selling until an account could be taken of the fund in the hands of the Sheriff and a distribution made of the same, so as to ascertain whether or not A\u2019s judgment would be satisfied therefrom.\n(Roberts v. Oldham, (13 N 0. 297, cited and approved )\nAppeal from an Order vacating an Injunction, made on the 29th of November, 1876, at Chambers in Charlotte by ISchench, J.\nThe action was commenced in the Superior Court of Gas-ton County. The controversy in this appeal is between the plaintiff Jackson and the defendant S. J. Sloan. Sloan obtained a judgment against the firm of J. & E. 13. Stowe, which constituted a lien upon the \u201cStowesville Factory\u201d belonging to the firm. Afterwards Jackson purchased of J. & E. B. Stowe the factory in question and of course subject to the lien of the judgment. Sloan had caused an execution to be issued for the sale of this property for the satisfaction of bis debt. Jackson applied for an injunction against the sale \u00e1iiid obtained a restraining order until Sloan could show \u00abause. Upon his answer coming' in the restraining order was vacated and the injunction refused and from this the plaintiff appealed to this Court.\nThe complaint alleged as the grounds for an injunction tshat besides the \u201cStowesville factory\u201d the,firm of J. & E. B. .'Stowe also owned another valuable property known as the \u2022\u201cSpring Shoal\u201d tract of land which was subject in like man-mer to the lien of the Sloan judgment; and that since his purchase of the factory this latter tract of land has been sold minder executions issued upon the Sloan and other judgments and the proceeds of sale amounting to $12,000 are now in the hands of the Sheriff of Gaston County and held subject to the discharge of.these judgments in such order as the Uourt may direct. The complaint further alleges that this fund is sufficient to pay the Sloan judgment - and all other liens upon the factory property which the plaintiff had pur\u25a0chased.\nThe answer of Sloan denies that the \u201c Spring Shoal\u201d tract belonged to the firm of J. & E. B. Stowe and avers that it was the separate property of J. Stowe; and it denies that \u00c9ke proceeds of its sale are sufficient to satisfy all the liens rapon it of a prior dignity to the Sloan judgment and the iSloan debt also. The answer however does not deny-the .allegation that the \u201c Spring Shoal\u201d tract was 'sqld under executions issued upon the Sloan and other judgments,- and it admits that Sloan has caused an execution to issue upon the judgment and is threatening to sell under it the \u201cStowesville-.Factory\u201d theretofore purchased by the plaintiff.\nIlis Honor vacated the restraining order and-refused the injunction as aforesaid. From this ruling the plaintiff appealed.\nMr. J. W. Hinsdale, for plaintiff.\nNo counsel for defendants."
  },
  "file_name": "0306-01",
  "first_page_order": 318,
  "last_page_order": 323
}