OLIVER V. DIX.

within a limited period, and that such conveyance had not been made. That is said to be the sole ground, because it appeared by the Master's report that James Dix did discharge the incumbrance, and obtained a reconveyance of the legal title; and by the terms of the contract, the plaintiff was then to take the title of James Dix, such as it was. For the reasons then given, the Court refused the relief asked. The vendor, we thought, had a right to insist on the contract; and the plaintiff, under the circumstances, was obliged to accept a conveyance, if offered to him by those to whom the legal title came from the vendor; and those persons, we also thought, were compellable, at the instance of the plaintiff, or of the original defendant, whether regarded as a surety for the vendor, or as assignee of the securities for the purchasemoney, to make such a conveyance, upon a bill properly framed.

As the bill has been amended, the object is to obtain a conveyance; and it is now, therefore, the common case of a vendor seeking a specific performance; to which the plaintiff here is clearly entitled, upon the performance by himself of the contract on his part. One-half of the purchasemoney, the sum of five hundred and twenty-five dollars, fell due 9 October, 1821, and with the interest subsequently accrued, remains unpaid and resting in the judgment which was enjoined in this suit. The payment of that sum and the interest, is necessarily preliminary to the relief asked. There can not be a decree for a conveyance of the land, unless the plaintiff has paid the purchase-money due at the time, or offers to pay it, and brings it into Court. Although the defendants may be in default, so also is the plaintiff, in the present state of the case; and the Court can not move at the instance of either party, until that party shall have exculpated himself. At law, the respective engagements of these parties may be independent; but in this Court, the estate is always regarded, until an actual conveyance, as a security for the purchase-money, or such part of it as has fallen due.

This must be especially true in our law, since the (607) vendor, after conveying, has no lien against other creditors of the vendee. The defendants are therefore

OLIVER V. DIX.

entitled to more than a dissolution of the injunction, before executing a deed, or before a decree against them to convey. The means possessed by this Court of securing the vendor in the price are more effectual, by requiring the payment prior to or at the hearing. Upon payment, the plaintiff purges his default and is in a condition to claim the relief. In strictness, the bill might now be dismissed for the want of payment, or an offer of it. But owing to the peculiar circumstances under which the case has assumed its presnt shape, and seeing that the defendants have not moved to dismiss, but that one of them, who is chiefly interested, is desirous that the litigation should be terminated upon this proceeding, the Court declines dismissing the bill for the present, and, instead thereof orders the plaintiff to pay into Court within the first eight days of the next term, the half of the purchase-money remaining unpaid, with the interest thereon as above-mentioned, to the day of payment, and the costs of the suit at law, mentioned in the pleadings. Upon the payment being made, either party may then move for further directions, and it will be, of course, to decree the specific performance asked by the plaintiff, and wished by the original defendant. The money also may be detained in Court until the actual execution of the deeds, if necessary, under the circumstances to be shown, as a guarantee that the conveyances decreed shall in fact be executed, or an inducement to diligence on the part of the defendants or either of them, in procuring their execution. But in the event of a continuing default in this respect on the part of the plaintiff, the Court can do nothing less at that time than dismiss his bill. That will leave the other party to enforce the judgment at law, or file their bill to raise the residue of the purchase-money by a sale of the estate itself; and, in case of the judgment being satisfied without a sale of the estate, the plaintiff will then be put to a new bill, having the same object with the present, but presenting the new fact of the payment of the whole purchase-money. It is with the view of

avoiding such injurious delay and litigation, that the (608) present course is adopted, of requiring the plaintiff to bring in the unpaid residue of the purchase-money,

CLARK V. BANNER.

within a reasonable time, as before-mentioned; which is ordered accordingly.

PER CURIAM.

Decree Accordingly.

Cited: Winborn v. Gorrell, 38 N. C., 121; Burgin v. Burgin, 82 N. C., 200; Johnston v. Cochrane, 84 N. C., 449.

SAMUEL CLARK v. CHARLES BANNER et al.

1. A plaintiff who seeks the aid of a Court of Equity to obtain satisfaction of his judgment at law, ought not only to establish his debt there, but sue out execution.

2. Whether a return of nulla bona on such execution be necessary, Qu?

THE bill charged that the plaintiff, as the surety of the defendant Charles in his official bond as Sheriff of Stokes County, had been compelled to pay large sums of money for the default of his principal; that he had obtained a judg ment against his principal for the sum of two hundred and thirteen dollars and twenty-seven cents, part of such payments; and that a large balance still remained due him on account thereof, for which he had obtained no judgment; that the defendant Charles, to defeat the plaintiff in obtaining satisfaction of his debt, had conveyed to his sons, Constantine and John, also defendants, all his property, except one mare, which he had conveyed to the plaintiff; and that the defendant Constantine had brought an action at law against the plaintiff for the value of this mare. The plaintiff insisted, that all the conveyances by the defendant Charles to his sons were fraudulent; and prayed a discovery and account of the property of Charles in the hands of the other defendants; and for satisfaction of his debt out of the property or money.

The defendants answered, and denied all the allegations of the bill. Proofs were taken, and the cause transferred to the Supreme Court for hearing.

Waddell, for the plaintiff.

J. T. Morehead and Boyden, for the defendants.

CLARK V. BANNER.

(609)

DANIEL, Judge, after stating the case, proceeded: The defendants might and ought to have demurred to the bill. The plaintiff, although he obtained a judgment at law for part only of his demand against Chas. Banner, never, as we can discover, took out any execution to obtain satisfaction at law, even for that portion of it which he had reduced to a judgment. The plaintiff should have obtained a judgment at law for his entire demand, and then issued an execution on the same. Because, until execution, the plaintiff has no lien on the property as to which he asks the aid of this Court for a discovery and satisfaction. In Angel v. Draper, 1 Vern., 399, the defendant had come to the possession of the goods of the debtor in a fraudulent manner, but notwithstanding, upon the defendant's demurring because the plaintiff (a judgment creditor) had not alleged that he had taken out execution, the Court allowed the demurrer, and said that the plaintiff ought actually to have sued out execution before he brought his bill. To the same point is Shirley v. Watts, 3 Atk., 200. The plaintiff should show that he had sued out the writ, the execution of which is sought to be avoided, or the defendant may demur. 1 Mad. Ch. Prac., 205. Whether it is necessary to show a return of nulla bona, it is not now necessary to inquire, as no writ of execution ever issued on the plaintiff's judgment.*

They have answered and

The defendants did not demur. denied the allegations in the bill, and the parties have gone to proofs. We have examined the testimony, and the plaintiff has, in our opinion, failed in proving that the two sons of Charles Banner have any money or property of their father, which ought to be subjected to the satisfaction of his demand. We think the bill must be dismissed; but the defendants are entitled to recover costs only as in case of a demurrer sustained, viz., one attorney's fee.

There is another matter controverted between the parties in relation to which the Court makes no decree. The bill alleges that the defendant Constantine has brought an (610) action at law to recover from the plaintiff the value of a mare, which the plaintiff claims by conveyance from the defendant Charles. The Court leaves that matter *Vide Harrison v. Battle, 16 N. C., 537. (Reporters.)

BETHELL'S EX'IX v. WILSON.

to be settled between the parties in the suit at law, if the same be yet pending.

PER CURIAM.

Bill dismissed.

Cited: Bethell v. Wilson, post, 613; Bank v. Harris, 84 N. C., 209; Frank v. Robinson, 96 N. C., 33.

WILLIAM BETHELL'S Ex'ix. et al. v. JOHN P. WILSON et al. 1. All the residuary legatees are necessary parties to a bill seeking to subject the share of one of them to a debt; especially when the interest of each legatee is uncertain, depending upon the amount of advancements made them in the lifetime of the testator. 2. A creditor can not obtain the aid of a Court of Equity to procure satisfaction of his debt under any circumstances, until he has established his claim at law, and issued an execution therefor.

WILLIAM BETHELL and Absalom Watt filed their bill against John P. Wilson, and also against Sarah and Covington Wilson, executrix and executor of John Wilson, deceased. and thereby charged that the plaintiffs and the defendant John P. in the year 1826, entered into a co-partnership for the purpose of buying and selling slaves; that the defendant John P. was the acting partner of the concern, received the capital paid in, purchased a parcel of slaves, carried them to the South and sold them, partly for cash and partly on credit; that the said defendant paid to the plaintiffs a part of the moneys he had received, and subsequently wrote to the plaintiff Bethell informing him that there yet remained to be collected for the concern, the sum of three hundred and seventy-five dollars, which when collected and expenses paid, were to be divided among the partners as profits, according to the contract; that soon afterwards, the said defendant did collect the said debt, and others due to the concern, and in the year 1827 or 1828, made a settlement with the plaintiff Watt,

at which he admitted himself indebted to the plain(611) tiffs, as partners, in the sum of two hundred and fifty

dollars or thereabouts, and stated and signed an account to that effect, which has been lost or mislaid. The