Delamothe v. Lanier, 5 N.C. 413, 2 Car. L. Rep. 413 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 413, 2 Car. L. Rep. 413

Delamothe v. Sarah B. Lanier, Executrix of Clement Lanier.

In this case a scire facias had issued against the defendant, to show cause why judgment should not be rendered against her on a bond given by her testator, jointly with Thomas C. Williams, on an appeal obtained by said T. C. Williams from the County Court of Montgomery. A judgment was obtained by the plaintiff against T. C. Williams, at September Term, 1809, after the death of the defendant’s testator. No motion was then made for judgment against the securities on the appeal bond. And the sci. fa. was made returnable to May Term, 1812, when the defendant pleaded, “ Nul tiel “ record, former judgments, payments made on specialties “ and simple contract-debts before notice, and judgments “ obtained against defendant on simple contract debts with- “ out notice—which has exhausted and attached the assets, “ no assets ultra, fully administered.”

At May Term, 1814, the following judgment was given, by the Court: “ The judgment of the Court is, that there is such a record.”

Question for the Supreme Court, Whether the defendant can give in evidence judgments obtained on simple contracts rendered against her before issuing or notice of this sci. fa. and without notice of the bond; and whether this bond is to be considered such a debt of record that judgments on debts of inferior degree, without notice, and payments thereon, amount to a devastavit?

The case was submitted without argument.

Taylor, C. J.

delivered the Judgment of the Court:

The duty of an Executor would be attended with infinite peril, if he could not safely pay simple contract debts before he has notice of a bond; for then a bond creditor might withhold his claim, till all the assets were exhausted in the payment of simple contract debts, and compel the executor to pay de bonis propriis.

But the rule is, that an executor may pay debts of an inferior nature, before those of a superior, of which he has no notice; provided such payment is made without fraud. In debt on bond, the defendant, being an executor, pleaded a judgment had against him on a simple contract debt ultra, &c. and upon demurrer, the plea was holden good. Davis v. Monkhouse. Fitzg. 76.

But even notice of the bond in this case, could not, it is believed, have bound the assets before judgment, in exclusion of simple contract creditors; because it was not for the payment of a sum certain, but depended upon a contingency, whether the testator’s estate would ever become chargeable with it. For until the appellant failed to prosecute the appeal with effect, and neglected to perform the judgment of the appellate Court, the bond was not fofeited. It has accordingly been decided, that a contingent security, as a bond to save harmless, shall not stand in the way of a debt by simple contract. 2 Vern. 101. We are therefore of opinion, that the evidence of payment of inferior debts was properly received in this case; and that the verdict for the defendant ought to remain.