Pool v. Ehringhaus, 39 N.C. 33, 4 Ired. Eq. 33 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 33, 4 Ired. Eq. 33

MARY JANE POOL vs. JOHN C. EHRINGHAUS.

When an infant and another person joined in a petition, in a Court of Equity, for a sale of land, held in common, the sale was made, and the Court ordered, that, when the money was collected, the infant’s share should be paid to her guardian, upon his giving bond to the Clerk and Master with sufficient surety, that the same should be secured to the infant or her heirs, as real'estate, and the Clerk and Master paid the money to the guardian without taking such bond and surety: Held, that he was liable to the infant by an action of law, or proceedings might be had against him in the Court of Equity, by a rule or attachment to pay the money; but that the infant had no remedy against him by an original bill in Equity.

This cause, having been set for hearing, was removed by consent, to this Court, at the Fall Term, 1845, of Pasquotank Court of Equit3r.

The present plaintiff and another persbn, who were tenants in common of a tract of land, filed their petition in a Court of Equity for a sale of the land for the purpose of partition; and a decree was made accordingly, a sale had, and the money paid into the office of the Clerk and Master. The plaintiff was, and still ,is, an -infant; and when the money was collected, the Court ordered that her share of it should be paid to Jesse L. Pool, the guardian of the plaintiff, upon his giving bond to the Clerk and Master, with sufficient surety, that the same should be secured, to the plaintiff and her heirs, as real estate. The present defendant afterwards became Clerk and Master, and received the fund into his hands, and paid it to Jesse L. Pool without taking any bond from him, as directed in the order, and Jesse L. Pool died insolvent. Upon this case the bill was filed in the name of the plaintiff, by her next friend, praying that the defendant may be decreed to pay the money to the plaintiff with interest from the time he paid the same to Jesse L. Pool.

The answer admits the facts, as above stated, and that the defendant is liable to make good the money to the infant. It states that the defendant paid the money to Pool, under the belief, that he had given the proper bond with sureties, when lie was appointed guardian, and that such bond was a sufficient compliance with the decree. The defendant states, that his mistake on that point was an honest one, and that he has always been ready to pay the money again, when any person should be authorized to receive it; and he submits, therefore, whether he should be compelled to pay interest thereon, since the plaintiff treats the money, as being still In bis hands. The answer then insists, that this is not a proper subject for a bill in the Court of Equity, as the remedy is plain by order of the Court upon the defendant as an officer of the Court, or by suit at law on his official bond.

A. Moore, for the plaintiff.

Badger, for the defendant.

Ruffin, C. J.

The plaintiff lost the legal profit, which might have been made on her money, by the payment to a person unauthorized to receive it, who used and wasted it. The defendant is, therefore, clearly liable for both principal and interest, although he had the benefit of neither : for both stand on the same footing. The defendant says, indeed, that lie lias been always willing and ready to pay the principal; but wo cannot understand that to mean that lie lias actually kept that sum by him, as the plaintiff’s money, making no use of it — for, if so, he would have stated the facts with precision. On the contrary, the answer is taken only to admit the defendant’s liability for the sum, and to say, that he at no time meant to resist the demand; and, consequently, the defendant cannot be supposed to have, in the mean while, lost the use of the money, which he is now called on to pay.

But, admitting the defendant’s liability to tbe whole extent, the Court holds his objection to the remedy, here attempted, to be good. This is not the proper subject of equitable jurisdiction upon a bill. The plaintiff’s right is not an equity, but it is in its nature legal — being merely the right to a sum of money paid into the office for her use. That the defendant is an officer of the Court does not change the jurisdiction, so as to make the matter cognizable by suit commenced by bill. The Court of Equity would have given the plaintiff' summary and complete relief upon her petition in the original cause, or on ker motion, and a rule on the Gierk and Master, to be enforced by attachment; or she might have instituted an action at law, against the defendant and his sureties on hi* official bond. But there is no ground, on which a bill can be sustained, without authorizing this remedy against every Clerk or Sheriff who misapplies or fails to pay money received in Ms office for another. Therefore, the , bill must be dismissed at the costs of the next friend* without prejudice to any other remedy the plaintiff may have in the premises.

Per Curiam.

Decree accordingly.