Fox v. Alexander, 36 N.C. 340, 1 Ired. Eq. 340 (1841)

June 1841 · Supreme Court of North Carolina

36 N.C. 340, 1 Ired. Eq. 340

STEPHEN FOX AND OTHERS vs. MOSES W. ALEXANDER AND OTHERS.

Where a man takes a bond by assignment from the guardian of an infant the bond being payable to the assignor as guardian, the assignee is considered in equity as holding the bond in trust for the infant, and must account for it accordingly, And the sureties on the guardian bond hav,e the same right, as the ward, when they have paid the surer ty money. They then stand in place of the ward.

The cases of Buntinv. Ricks, 2 Dev. & Bat. Eq. Rep. 130, and Powell v. Jones ante p. 337, cited and approved.

This was a bill in Equity, in which it was alleged that Robert J. Dinkins was the guardian of Rufus K. Dinkins, an infant; and gave bond with the plaintiffs as his sureties. — . that in the year 1834, he, the said Rufus K. Dinkins, recovered a judgment against the said Robert J. Dinkins and the said Stephen Fox and others, plaintiffs in this suit, for the sum of $1517 24 and costs of suit — which sum has been collected by execution, and paid by the plaintiffs — that the said sum was recovered against them, and paid by them a§ sureties to the said guardian bond~that the said Robert J. Dinkins was dead and insolvent — that in his lifetime transferred to the defendant, Moses W. Alexander, a bond payable to the said Robert J. Dinkins, as guardian of the said Rufus K. Dinkins, and executed and due by the other defendants mentioned in the bill — that the defendant Alexander well knew that the said Robert J. Dinkins was insolvent and received the said note payable to him as guardian aforesaid in discharge of a debt due from the said Robert J* Dinkins individually. And they prayed to be substituted in place of the ward, whose securities they were and whom they had paid, and that the said plaintiffs might be indemnified as far as they could be out of the said note &c. And that the defendant Alexander be enjoined from receiving the said money. The defendant Alexander admitted that he knew the said bond or note was payable to the guardian of R. K. Dinkins. And that it was paid to him in discharge of an individual debt from the guardian, but denied, that he knew the guardian was insolvent. On the hearing, the injunction was ordered to be continued, from vvhich order the plaintiffs prayed and obtained an appeal.

W. J. Alexander for the plaintiff’.

D. F. Caldwell for the defendant.

Daniel, J.

The defendant Alexander at the time he took the assignment from Robert Dinkins of the bond, mentioned in the pleadings, knew that it was held by the said Robert as Guardian to his ward Rufus K. Dinkins. The bond on its face was made payable to “Robert Dinkins, guardian of Rufus K. Dinkins.” The guardian became insolvent and is now dead. The defendant, by the rules of a Court of Equity, became a trustee to the ward for the amount of the bond. The plaintiffs, as sureties to the guardian bond, have been compelled to pay the ward the amount of this debt. They have a right, therefore, in a Court of Equity, to stand in the place of the ward, and follow the trust fund and recover satisfaction to that amount, now in the hands of the defendant, Alexander, or in the master’s office. The plaintiffs have a superior equity to that of the defendant Alexander. The decision of the Judge we think was correct, and it is in accordance with the cases of Buntin v. Ricks, 2 Dev. & Bat. Eq. Rep. and Powell v. Jones, decided at this term (ante p. 337). This opinion will be certified &c. and the appellant must pay the costs of this court.

Per Curiam, Decree accordingly.