Daughtry v. Reddick, 40 N.C. 261, 5 Ired. Eq. 261 (1848)

Dec. 1848 · Supreme Court of North Carolina

40 N.C. 261, 5 Ired. Eq. 261

WILLIAM G. DAUGHTRY ADM’r. &c. vs. THOMAS REDDICK.

When A. had been absent and not beard from for seven years, and, on the presumption of his death, administration was granted to B., and B. brought a bill against C., who had been an agent of A., praying for an account of what he had received as agent and payment of any balance in his hands, and C. in his answer stated, that from A’s. wandering habits, it was just as probable he was alive as dead ; the cause being set down for hearing upon the bill and answers, It was held that when the Court decreed the payment of the money in C’s. hands, they might properly annex as a condition that before C. should pay it, B. should execute to him a bond of indem - nity.

St is not proper in praying for process to call it the “People’s” writ of Subpoena. It should be the “States” writ of Subpoena.

Appeal from a decree of the Court of Equity of Gates County at Fall Term 1S48, his Honor Judge Bailey presiding.

In October 1848, the plaintiff filed a bill, stating that Hiram Hurdle, formerly of Gates, was entitled to certain land and slaves in that county, and that, intending to go out of the State, about the year 1840, he appointed Red-dick, the defendant, his agent, to lease the land and hire out the negroes during his absence, and put him in possession for that purpose r That after making the appointment Hurdle disappeared, and had not since been heard from ; and' that at May term 1847, the County Court of Gates granted administration of his estate to the plaintiff. The bill further stated, that the defendant accepted the agency, and had continued to act under it up to the filing of the bill and had received considerable profit therefrom. The prayer was for a division and account, and a deeree for a delivery of the slaves to the plaintiff, and payment of the money that might be found due for rents and hire.

The answer admitted the defendant’s agency, and set forth an account, showing a balance in the defendant’s hands of $2,334 71, including certain notes and bonds held b}' him for some parts of the rent and hires. It stated, that in November 1839, the defendant received from Hurdle a letter and power of Attorney, made in Boston on the 11th day of that month, authorising the defendant to take the management of his property, which had before been confided to another person: that, for several years before that time, Hurdle had been absent from, home, and that at intervals the defendant heard fromjhim ; but that he did not receive any two letters from the same place, and that the last time he heard from him was by letter dated January 2nd, 1840 : that Hurdle then seemed to be wandering about the country without any settled residence or calling : that the County Court granted administration of his estate upon the presumption of his death by reason of his absence: but that the defendant believed it as probable that he was alive, as that he was dead. — ■ It stated, further, that the defendant was desirous to settle his accounts as agent and deliver the effects and pay the money in his hands to any person authorised to receive them and discharge him ; and that he was willing to make such delivery and payment to the plaintiff, if hé would duly secure the defendant from any claim on him by or under Hurdle — whose death was not certain.

The plaintiff set down the cause upon bill and answer; and moved for an immediate decree for the delivery of the slaves and securities for money, and also for the payment of the balance of cash, admitted in the answer; and the same was decreed to be done, whenever the plaintiff should execute a bond to the defendant with sureties, to be approved by the master, to indemnify the defendant against any claim that might thereafter be set up against him by Hurdle or any person under him, in réspect to the estate.

The plaintiff subsequently declined giving the bond, and filed the present bill to review so much of the decree as required the bond. The defendant demurred, and upon argument the decreee was affirmed, and the plaintiff appealed.

Jordan and Heath, for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

The security decreed seems to have been under the circumstances, but a reasonable protection to the defendant. There must always be more or less uncertainty of the fact, when there is nothing else but the presumption of death from the absence of the supposed party deceased. That uncertainty is rendered greater here than it would usually be. The plaintiff could not in the bill allege the death postively, but left it upon the force of the administration, which was granted on the presumption. Besides, he set down the cause upon the answer, and that states the belief of the defendant, that Hurdle was as probably living as dead, and the belief appears to be the more reasonable from the previous course of life of that person. He had been actually absent for many years before 1840, during which he sometimes, but seldom, wrote home; and he seems to have had no family, fixed abode, or regular calling. He may, then, be yet alive ; or, which is as probable, if dead, he may have made a will abroad, which, as he was a stranger, has not hitherto come to light. Just at the close of seven years, these are more than mere possibilities. If this person be either living or has made a will, the administration granted to the plaintiff is absolutely void, and the defendant would be chargeable again for the effects to Hurdle or his executor. For the jurisdiction to grant administration arises only, where the person is dead and has left no will. Graysbrook v. Fox, Pl. 276. Allen v. Dundas, 3 T. R. 125. It is true, if the plaintiff had thought proper to sue at law, that he could have recovered, unless the defendant could have shown that the supposed intestate was in fact alive, or had made a will. The reason is that the judgments of courts oflaw are absolute, and they cannot give conditional judgments nor provide indemnities. But the jurisdiction of the Courts of equity is not so straitened, and allows all proper protection to be provided against any loss that may arise to a suitor from any act, which the Court requires him to perform. It is a power often usefully exercised. Money, for instance, is frequently directed to be paid to a party upon his apparent right to it in a particular stage of a cause, before the right is conclusively determined — as, upon the dissolution of an injunction of a judgment at law, upon his engagement to make it good, if it should be so decreed in the progress of the eause. So, in the case of lost bonds or notes, the creditor may recover absolutely at law, if he can make out his case there. But if he sue in the Court of equity, he is always required there to give an indemnity, unless the destruction of the instrument be admitted. In the present case, if Hurdle be really dead intestate, the plaintiffcan sustain no inconvenience from the bond. But as that is uncertain, the risk ought to be borne by the plaintiff, who will have the fund, and he ought not to throw it on the defendant, after taking the effects from him.

The Court deems it a duty to notice a departure in the bill from the common prayer for process by calling it “the People’s writ of subpoena. This, though a very trivial matter in itself, requires correction, as we know not what other liberties persons might take with the settled and proper forms of pleadings, if this were passed over silently. The constitation requires that all writs, like commissions and grants, should run in the name of “the State and that is authority sufficient, one would suppose, in favor of the precedents.

Per Curiam.

Decree affirmed with costs.