Burgwin v. Richardson, 10 N.C. 203, 3 Hawks 203 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 203, 3 Hawks 203

Burgwin v. Richardson.

IN EQUITY.

"} V From New-Hanover. J

If an obligation and a mortgage be given, to secure the payment of money, on a bill to foreclose, alleging the loss of the obligation and offering an indemnity, it seems the loss of the bond must be proved, otherwise the Court will not compel the mortgagor to accept a counter security.

Richardson bound himself by an obligation, dated February 12, 1812, to pay to Burgwin $1621, on the 12th of August, 1814; and to secure such payment by deed of bargain and sale, of even date with the bond, conveyed to Burgwin certain slaves and land, with a proviso in the deed, that it should be void if the obligation was paid.

The bill was filed March, 1820, and set forth the above facts, and that Richardson had made certain payments, but that great part of the debt was still due, and that interest had accrued ; that the obligation had been lost or mislaid by accident, and that Richardson had been requested to pay, on indemnity offered, and had refused, and prayed a foreclosure of the equity . of redemption, of the property mortgaged, and general relief.

The answer admitted the execution of the obligation and mortgage, as charged, and claimed an allowance for certain payments; it neither admitted nor denied the loss of the obligation, and an offer of indemnity specially, but concluded with a general traverse : there was no proof in the cause: it stood for hearing on bill and answer, and a report of the master ascertaining the amount due on the obligation. To the report there wore several exceptions, none of which were allowed by the Court.

Gaston, for Complainant. — Hogg, Contra.

On behalf of the Defendant it was moved'to dismiss, because there was no proof of the loss by accident, as alleged in the bill. It was contended, that as the obligation was negotiable by our law, that -it should be produced or accounted for, and that the Court would not compel the Defendant, to accept a counter security, but upon proof that the negotiable security had been lost 5 otherwise, the presumption that the obligation had been negotiated, and that it had been lost by accident, was equal, and the Complainant could not call on the Court tó affirm by their decree, that it had not been negotiated, but had been lost

To this, it was answered, that the obligation had been lost, when the bill was filed, but had been subsequently discovered, and was now in possession of Complainant’s Counsel below, and a motion was made for a decree, to go into effect upon the production of the obligation to the Clerk of this Court.

After the offer to produce the obligation, the motion to dismiss failed, but the Court refused to make any decree until the obligation should be produced, in this Court. On another day, Gaston produced the obligation, and the Court decreed for Complainant.