Newsom v. Newsom, 40 N.C. 122, 5 Ired. Eq. 122 (1847)

Dec. 1847 · Supreme Court of North Carolina

40 N.C. 122, 5 Ired. Eq. 122

LARRY NEWSOM vs. CHARITY NEWSOM & AL.

Where a guardian bona fide transfers to another, for a full consideration, a debt due to his wards, the assignee is entitled to the same remedy in Equity to recover the debt, which the wards would have had.

The Court expresses irrelevant matters, and interlarding bills and answers with unavailing epithets, and with matters that have no-bearing whatever on the-controversy.

Cause removed from the Court of Equity of Wayne County, at the. Spring Term, 1847, by consent of parties.

John was. children, Charity, Penelope, and Sarah, and died intestate and indebted to his wards, leaving them surviving, and also eight other infant children — all of whom were his heirs at law. At the time of his death, he was seised m fee of a tract of land in the pleadings described;. which descended to all his children. Administration of his personal estate was committed to Theophilus T. Sims; and against him a suit was brought by petition by the three children, Charity, Penelope and Sarah, by their guardian, William Barnes, to recover their portions, which were in the hands of their father, as their former guardian. The sum of $1,945 94, was found to be due to them, and so declared by the Court; but it was also found that there were no personal assets in the hands of the administrator, and, therefore, no decree was given against him therefor. A scire facias was thereupon sued out by the plaintiff against the other children and themselves, to subject the real estate descended from their father, and judgment was thereon entered for the debt and costs ; and Barnes, the new guardian, assigned the debt to the present plaintiff, Larry Newsom.

The intestate, John Newsom, died indebted also to James Sims, and to James Phillips, and they respectively brought suits, and ascertained their debts, but had the plea of fully administered found against them ; and then irregularly took judgments against the heirs at law.

On those three judgments writs of fieri facias issued against the lands descended, and a tract of land was exposed to sale by the sheriff, and purchased by Larry Newsom at the price of S3,157 50, that being the amount due the three executions for debt, damages, and costs ; therewith the creditors, Sims and Phillips, were satis- and the present plaintiff retained the residue in satisfaction of his own demand, as assignee of the debt to said Charity, Penelope and Sarah. Afterwards, all judgments and executions were set aside, as irregu- and void ; as may be seen in respect to one of them in ease of Newsom v. Newsom, 4 Ire. 881; and then the plaintiff, who had gone into possession of the land, surrendered it to the heirs again, and commenced this suit against Theophilus T. Sims, the administrator, Barnes, the guardian, and against all the children and heirs of the intestate, John Newsom.

The bill states, that the several debts recovered against the administrator were just, and that in fact he had no personal assets but had fully administered the estate ; and therefore, that the lands descended were chargeable with the debts. The bill also states, that the plaintiff was not aware of any irregularity in the proceedings at law, at the time he made his purchase and paid the money, with which Sims and Phillips were satisfied ; and that he is advised, that he ought to be substituted in this Court to their rights against the land. And it also states that the assignment to him by Barnes was in consideration of the full amount due on the judgment in favor of his wards, which the plaintiff paid therefor.

The prayer is, that the plaintiff may be declared to be entitled to the sum due on the judgment assigned to him by Barnes, and also to the two sums, which he paid in satisfaction of the judgment recovered by Sims and Phillips against the administrator; and that, if not paid within a reasonable time by the heirs, those sums may be raised by the sale of the land descended, or so much as may be requisite for that purpose.

The defendants, all, put in answers. Barnes, the guardian, admits that he sold the debt to the plaintiff for a price equal to the whole amount of it; but, he says, that he took a note for the money, and that it has not been paid. He further says, that his reason for making the assignment was, that he considered that he was thereby realizing the debt due to his wards, and thought the plaintiff was actuated in getting the assignment by motives of good will towards his wards and the other infant heirs, but that he has since had reason to believe, that his object was to purchase their land unfairly, and at a sacrifice.

The answer of the administrator states, that he had no assets at the time the judgments were obtained, and has had none since.

The answers of the heirs insist, that they are not bound by the former findings upon the question of personal assets, and claim to have an enquiry as to them, as they are not satisfied that the administrator has fully administered. They are, however, chiefly taken up in stating many circumstances, evincive of a fraudulent purpose in the plaintiff, in procuring an assignment of the judgment from Barnes, and in conducting the sale of the land, so as to purchase it at an undervalue ; and insist that an assignment of an irregular judgment, thus obtained and thus used against infant heirs, ought not to be upheld.

The answers further insist, that the plaintiff cannot have any relief in respect of the money paid to Sims and Phillips, because the plaintiff can recover that money back from those persons, since their executions were set aside, and because those persons were proceeding at law, by scire facias, on their judgments against the heirs.

By consent of all the parties, the bill was amended in this Court by stating in it, that, after the sale of the land and the executions had been set aside, Sims and Phillips respectively assigned their judgments against the administrator to the plaintiff, instead of re-paying to him the money they had received. And such is admitted to be the fact. ■

By consent also, there was a reference to the clerk to take an account of the administration of the personal assets of the intestate ; and he reported that the administrator had fully administered, before the suits at law were brought against him.

J. H. Bryan and Mordecai, for the plaintiff.

Ousted and TV. O. Haywood, for the defendants.

Ruffin, C. J.

The cause has been brought to a hearing upon the pleadings and proofs and the master’s report, as to the state of the personal assets. The assignment to the plaintiff of the judgment or decree obtained by the defendants, Charity, Penelope, and Sarah, against their father’s administrator, is admitted in the answers ; and it is established by the evidence, that the plaintiff gave the guardian the full value of it by transferring to him a debt of another person, from whom, the guardian took a satisfactory security. The plaintiff, therefore, is clearly entitled to the decree he asks in respect of this demand. The Court so said, when the case was before us at law, upon the ground, that there was no remedy at law, and this Court would not let a just debt be lost for the want of a fit legal remedy. Without recurring, therefore, to the general jurisdiction of a Court of Equity to entertain a creditor’s bill against the personal and real representatives for a discovery and account of the personal apd real estates, and for payment out'of the former, if sufficient, and, if not, out of the latter, the particular circumstances of the present ease, constitute a clear one for satisfaction to be decreed in this Court out of the lands descended from the debtor. Of course there is nothing in the objections taken in the answer, that the plaintiff took the assignment from a bad motive, and attempted to use it injuriously and oppressively to the heirs ; for the sale was vacated, and the possession of the land surrendered by the plaintiff. That matter is therefore now out of the case ; and, as to the assignment, it could not, in a legal sense, be injurious to the heirs, as it subjected them to the payment of neither more nor less, whoever might be the owner of the judgment. The Court uses the occasion, as a fit one, to express a disapprobation of bringing forward, in the pleadings, matter so entirely irrelevant, and suggests to pleaders that it is well calculated to impair a professional reputation, thus to interlard bills and answers with unavailing epithets, and with matters, that have no bearing whatever on the controversy.

With respect to the other debts, which were assigned to the plaintiff by Sims and Phillips, no observations are necessary, further than to say, that it does not appear, that there have been any proceedings at law, against the heirs on them, and that it is understood the defendants prefer, if the plaintiff could get a decree for the payment of the other debt, that these two should be added, so as to diminish the expense, and terminate the litigation.

Upon these grounds it must be declared, that the plaintiff is the assignee and owner of the three judgments mentioned in the pleadings, and is entitled to have the money due on them for principal, interest, and costs at law, and also the costs of this suit, satisfied out of the lands descended from the intestate and described in the pleadings, subject to a deduction for the clear profits made, or that might have been made by the plaintiff from the said land, while it was occupied by him, as in the pleadings mentioned. And it must be referred to the master to enquire what sums are due to the plaintiff in the premises, after deducting the profits of the land.

Per Curiam.

Decree accordingly..