Kinney ex rel. Perkins v. Etheridge, 27 N.C. 34, 5 Ired. 34 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 34, 5 Ired. 34

CHARLES R. KINNEY, Adm’r. &c. to the use of JOHN Q. PERKINS vs. WILLIAM ETHERIDGE, Adm’r. of E. SAUNDERS.

On ^ pe(.jtjon 0f tb.e guardian of a ward to the Court of Equity, two negroes were directed to be sold by the Clerk and Master for the purpose of re-im-bursing him for certain necessary advances he had made for his ward. At .the sale, the guardian bought the negroes and gave his notes. The ward came of age, and with the consent of the Clerk and Master, settled with his guardian and took back the negroes the guardian had bought. He then applied to the administrator of the Clerk and Master, to whom the bonds had been made payable for the bonds, and brought suit on them in the name of the administrator. Held that it was competent for the defendant to give these facts in evidence to shew a payment and satisfaction of the bonds, to one authorized by the plaintiff to receive such payment.

Appeal from the Superior Court of Law of Camden County at the Fall Term, 1842, his Honor Judge Bailey presiding.

This was an action of debt on two bonds for $250 each, which were, given by the intestate Saunders, to the intestate Ferebee. Plea — payment. On the trial the defendant insisted, that his intestate had made the payment to one John Q,. Perkins for the plaintiif. For the purpose of establishing it, he offered evidence, that Saunders was the guardian of Perkins, and that, while guardian, Saunders filed a petition in the Court of Equity and therein stated, that the expenses of the ward’s education exceeded the income of his estate, and prayed that two of his negroes should be sold under the direction of the court to raise a fund for that purpose; and' that thereupon a decree was made, that the negroes should be sold and that the sale should be made by Ferebee, who was the Clerk and Master of the Court, upon the terms therein prescribed ; that Ferebee made the sale, and at it Saunders became the purchaser of the negroes, and for the price gave the bonds now sued on. Ferebee died in possession of the bonds, and they came to the hands of Kinney, as his administrator, who several times requested Saunders and Perkins, after the-latter eame of age, to settle the matter between themselves, so that Kinney might settle with Perkins, and they both goner-' ally replied, «that they would arrange it.” The defendant then proved, that Saunders and Perkins came to a settlement that Perkins received the negroes back from Saunders, and sold them to other persons, and with the money discharged debts to other persons incurred in his education, and for which Saunders had become responsible, and then gave to Saunders a release from all demands against him as his late guardian. Afterwards Saunders died, and Perkins applied to Kinney for the bonds and got them, and then instituted this suit in the name of Kinney. On the trial, the plaintiff objected to the evidence, shewing the origin of the bonds, and the interest in them of Perkins, and his release. But the court received it, and the jury found that the debt had been paid ; and from the judgment the plaintiff appealed.

Kinney for the plaintiff.

A. Moore for the defendant.

Ruffin, C. J.

The objection to the evidence is urged upon the ground, that a Court of Law only recognizes the legal ownership; and that here Perkins had but an equitable interest, and could not receive payment or release the debt. But that principle is misapplied to this case. The defendant does not insist on the release as a bar proprio vigore; for he does not even plead it. But he relies on payment to Perkins, as a person authorized to receive it by the plaintiff himself. That authority was contained in the directions of Kinney to Saunders and Perkins, to settle these debts between themselves; and perhaps, it was necessary to shew nothing more on the part of the defendant, to constitute an agency of Perkins for the plaintiff, as the legal creditor. But the defendant was certainly at liberty to go further and satisfy the jury of the extent of the agency and the purpose of it, by laying before them the origin of the debts and the original interest in them of Perkins, as explanatory of the whole transaction. It is like payment to one, to whom a note is transferred without endorsement. The assignee thereby becomes the agent of the payee of the pote, and the debtor may plead payment to him its payment to the original creditor. But to establish the agency, evidenpe of the transfer of the note is competent; for that, indeed, creates the agency. Here, there is complete evidence of an agency in Perkins to settle and receive payment for the plaintiff; and evidence from which the jury could fairly infer, that, in conformity to the authority of Rinney to them, the parties, Saunders and Perkins, did settle, find Perkins received back his negroes in discharge of these bonds.

Psp. Curiam, Judgment affirmed.