Peace v. . Jones
Supreme Court of North Carolina
From Wake. The Plainüfis were creditors of the Defendant by specialty to the amount of $363 87, and sued out an original attachment against Ms effects, which was levied upon sundry articles, and Peter Browne, Esq. was summoned as garnishee.
Read the full summary
From Wake. The Plainüfis were creditors of the Defendant by specialty to the amount of $363 87, and sued out an original attachment against Ms effects, which was levied upon sundry articles, and Peter Browne, Esq. was summoned as garnishee. The substance of his garnishment, upon which the questions submitted to this Court arose, was, that prior to his being summoned as' garnishee, Jones had executed to him certain deeds of trust, for real and ■personal property, to secure three of Jones’s creditors; which property was sold at public sale upon a credit of three and six months, the purchasers…
1Opinion of the Court
Tayxor, Chief-Justice,
delivered the opinion of the Court:
If Mr. Browne had received the surplus in money, the purposes of the trust deeds having been executed and extinguished, it would have been so much money received to the use of Jones, and might have been recovered by him in indebitatus assumpsit; the law in such case, implying a promise to pay. For the quality of every such trust is, that what remains after paying the creditors, belongs to the assignor. And although the usual remedy against a trustee, for a misapplication of the trust fund, is by a bill in equity, yet at law, an action…
2Cited by2 opinions
- Sexton v. Phoenix Ins.Supreme Court of North Carolina · 1903
- White v. . OrdilleSupreme Court of North Carolina · 1948