Canaday v. Paschall, 38 N.C. 178, 3 Ired. Eq. 178 (1844)

June 1844 · Supreme Court of North Carolina

38 N.C. 178, 3 Ired. Eq. 178

WYATT CANADAY vs. DENNIS PASCHALL & AL.

A deed in trust was made for the purpose of securing or satisfying a number of debts — among others one debt is described as being a debt due “to Lucy F. Jinhins for about ihesumof $1000 on account of the guardianship of John Blaclcnallfor the said Lucy F. Jinhins.'’ It appeared afterwards, upon the settlement of the guardian accounts, that the sum ac. tually due to Lucy F. Jinkins, at the time of the execution of the deed, was $1481 99 cents — Held that the whole of this amount was secured by the deed, and not merely the sum of $1000,

Appeal from an interlocutory'order of the Court of Equity of Granville county at Spring Term 1844, his Honor Judge Dick presiding.

It appeared in this case that John Blacknall made a deed of trust, dated 5th September 1839, by which he assigned the property and effects therein specified to Dennis T. Paschall, as a trustee, to pay out of the assigned property certain debts specified in the deed, in the order in which the said debts are named. This bill was filed by Wyatt Canaday, one of the creditors named in the deed, against the said Paschall, Blacknall and the other creditors therein named, for an account and application of the assigned effects to the payment of the debts according to the provisions of the deed. Among the debts specified in the deed, and having a prior right of satisfaction to that of the plaintiff, is one to the defendant Lucy F. Jinkins and is described in that instrument in these words, “and also in a debt to Lucy F. Jinkins for about the sum of one thousand dollars, on account of the guardianship of the said John Blacknall for the said Lucy F. Jinkins.” The debt of Blacknall to Jinkins, so referred to, arose upon his guardianship of the said Jinkins, and at the time the deed was made the amount thereof was unliquidated, and, by proceedings at law afterwards taken, the amount thereof was ascertained to have been, at the time of the execution of the deed, $1481 99, and not $1900, and at the time of the filing of the bill, the same, including interest, amounted to nearly $1709. The effects in the hands of the trustee were admitted to be insufficient for the satisfaction of all the debts, and if the whole amount of the debt actually due to the defendant Jinkins from the said Blacknall be first paid out of the said funds, there will not be sufficient left to pay in full the debt due to the plaintiff Canaday; and at this time the funds being all in hand and a reference being moved to the master to state the accounts of the trustee, and apply the same to and amongst the creditors, according to the provisions of the deed, the counsel for the plaintiff moved the Court to declare, that, by the true construction of the said deed, the defendant Jinkins was not entitled to priority over the said Canaday for the whole amount actually due, but only for the amount specified in the deed, and that the master might be instructed to allow to the said Jinkins only that amount. The counsel for the said Jinkins on the contrary insisted, that she was entitled to priority for the whole amount actually due, and prayed such declaration from the Court. His Honor, being of opinion upon the said matter with the plaintiff, declared the said Jinkins to be entitled to satisfaction before the said Canadáy, only for the said sum of $1000, to be taken as due at the date of the deed; and ordered that the master, in making 1 ° distribution among the creditors, should allow to the sai d Jinon]y fpe said amount.

From this order the defendant, Jinkius, by permission of his Honor, appealed to the Supreme Court, and his Honor directed the foregoing statement to be certified to the Supreme Court, as containing the matter upon which the question between the parties arose.

Venable Iredell for the plaintiff.

Badger for the defendant.

Ruffin, C. J.

The Court cannot concur in the construction put on the deed by his Honor. That instrument enumerates many debts from the maker to sundry persons. Some of them are described specially, as being due, for example, by bonds, of such and such dates, for certain sums mentioned, and payable at certain days mentioned. ' Others are described as being due by bond or by judgment to particular persons for “about” certain sums mentioned. And others again are described as being due on open accounts, for “about the sums” specified. It is obvious that the writer of the deed did not know at the time the precise amoun tf;of the several debts, thus described as being for “about” such sums. But there can be no difficulty to the trustee in administering the fund, nor any serious doubt, as it seems to the Court, of the meaning of the party. The debts are sufficiently identified by the names of the debtor and of the several creditors and the nature of the debt, as arising on bonds, notes, judgments, or open accounts. The amount of of each debt was added as a farther description; and where the amount is stated to be a specific sum, thus due, that may be deemed an essential part of the description, which cannot be departed from. But where the debt is otherwise well enough described, and then, as an additional description, the amount is given, but is given as not being certainly the true amount, or as not being certainly known to be so, it would seem but a fair interpretation of the meaning of the parties, to hold that the accurate and sufficient parts of the description, in respect to which the words of the deed are affixmative and positive, should not be restrained in their obvious import, per se, by a further description, which thus professes on its face to be conjectural. The several sums, thus mentioned as the probable amounts of some of the debts, could not have been intended as exclusively controlling the-operation of the deed in that respect. For suppose this debt, instead of being more than $1000, had turned out to be less ; for example $800 ; no one could contend that, notwithstanding, the creditor could claim the whole sum of $1000, upon the ground that the deed mentioned and secured the debt really owing ; and therefore the deed would be restrained to the lesser sum. So, on the other hand, when the true debt exceeds the conjectural sum specified, the security must be considered as extending to the whole debt. We think nothing less can be held, upon the supposition which must be made here — that no fraud was intended on the other creditors by concealing the real amount of the debt, and that the language of the deed was used to describe the debt correctly, as far as the party was able at the time to do so.

It was, indeed, argued, that the true construction is, that only the sum of $1000 was intended to be secured, whatever the amount of the debt might be. But that seems to be wholly inadmissible. If that had been the meaning, the language would have been, that the maker of the deed was desirous to secure the debt to his ward, or a part thereof, not exceeding the sum of $1000. But'the words under consideration are used in that part of the deed, which is descriptive of the debts; and it is in a su bsequent part that it is said, “ that the said J. B. is honestly desirous of securing the payment of all the debts above named or referred to,” and yet further on the trustee is required (after some prior applications) “ to pay the residue of the funds in his hands towards the discharge of the remaining debts named, in the order in which they are named- above.” It is obvious, therefore, that the sum secured to Lucy F. Jinkins is not a part of any sum due to her, but the debt thus secured to her, is her en-^re debt — supposed indeed to be, “ about the sum of $1000, more or less, but intended to be secured as a whole, whether more or ]egg> The interlocutory order was, therefore, as we think, erroneous, and must be reversed with costs in this court. This will accordingly be certified to the Court of Equity.

Ter Curiam, Ordered accordingly.