Beaufort County NcArchives Court.....Leroy, V. Dickenson 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:15 pm

Source: Nc Court Reports, Vol 11, 1826
Written: 1825

December Term 1825

LEROY v. DICKENSON.

(223) 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 
H. Williams and William Guthrie, each for the penal sum of $6,011 75, and each 
conditioned for the payment of $3,055 87 1/2, endorsed and transferred the 
same to Jonah 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 H. Williams and Jordan Sheppard a 
conveyance embracing in it all the property which he Joel had, to be void on 
condition that Joel Dickinson indemnified Williams and 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 for 
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 December 1811, having 
first, by his last will and testament, given and bequeathed nearly all his 
property to Joel Dickenson, who was his son-in-law, "in trust to and for the 
use of Louisa Dickenson (wife of Joel), 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 
Marshall Dickenson, his kinsman, to (224) effect his purpose. Accordingly 
Joel, immediately after Sheppard's decease, took into his possession the 
personal property of Sheppard, and 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 ihe Court's aid 
and interference, but the above presents the principal point made in the case, 
and that to which the attention of the Court was more particularly called.

There was much evidence filed 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.

Taylor, Chief Justice.—One object of this bill is, to postpone a judgment 
confessed by Joel to Marshall Dickenson, to the complainant's demand 
ascertained by judgment, against the former. The allegation of fraud in the 
(225) confession 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 six 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 of unimpeached credit, show that they paid the amount of 
what they bought to Marshall himself. There is other evidence to the fact, 
that some of the notes given to Joel for purchases were in Marshall's 
possession, and that some were transferred by him after he administered. No 
satisfactory explanation is made why these sums were not applied to the credit 
of the judgment. There are 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 mere 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 William's and Joel's note 
to May is exposed to very serious suspicions. No charge was made for it by 
Sheppard against his sons-in-law, and it is rather to be inferred that (226) 
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; we 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.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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