Gardner v. Pike, 56 N.C. 306, 3 Jones Eq. 306 (1857)

June 1857 · Supreme Court of North Carolina

56 N.C. 306, 3 Jones Eq. 306

RILEY S. GARDNER and others against ALFRED PIKE and others.

A debt described properly in a deed of trust as to the amount — as to the time of its falling due — as the object for which it was created — as to the names of the makers, and as to the corporation for whom the debt was con» tracted- — shall not be rejected because of a variance in the description of the name of the payee from the true name.

Cause removed from the Court of Equity of Randolph county.

In a deed of trust made to the defendant Alfred Pike, on the 14th day of July, 1856, by the Island-Ford Manufacturing Company, several debts are secured in the first class, and are given a preference over other debts specified in the said deed, which latter debts are due to the plaintiffs. Among the debts, mentioned in the first class, is one which is described as follows: “To the North-Carolina Insurance and Trust Company, in the sum of seven thousand two hundred and eighty-five dollars, due about the 19th of August, 1856, secured by the note of John M. Coffin, John R. Brown, Jesse Thornberg, John Branson and A. S. Homey,” and at the close of the list of these preferred debts, is this further description, “ all which debts were made to raise money for the said company, and the makers of said notes and securities thereon, made said notes for the sole and exclusive benefit of the said company.” In another part of this deed of trust, the debt is recited as being due to “ the North-Carolina Mutual Insurance and Trust Company.”

There is no such company as that mentioned in the deed of trust in either of the clauses mentioned, and there was no note, bond, or obligation in existence, payable to such obligee, but there was existing, at the time of the execution of the deed of trust, a note payable to David P. W eir, treasurer of the Greens-borough Mutual Life insurance and Trust Company, for the sum of seven thousand two hundred and eighty-five dollars, which fell due on the 19th of August, 1856, which was signed by John M. Coffin, John R. Brown, Jesse Thornberg, John Branson and A. S. Horney.

This note had been executed, by the makers thereof and the sureties, for the purpose of raising money for the said company, and not for any individual benefit to them.

It was intended that this note should be described in the deed of trust, as it really was, but, by mistake of the draftsman, the description varied from it in the particular above set forth.

The only question in the case was, whether the debt thus described, was entitled to a preference as one of the first class of debts, or whether it should be excluded; the plaintiffs, who were the postponed creditors, insisting that it was not thus entitled, and praying that it might be set aside, and the preference yielded in their favor.

Miller, for the plaintiffs.

B. F. Moore, for the defendants.

PeabsoN, J.

A similar question to that now under consideration, was presented in the case of Miller v. Cherry, ante 23. It is there said, “ this is a latent, as distinguished from a patent, ambiguity, and presents a question of identity as distinguished from a question of construction.” The authorities are examined, and this is established to be the true principle: “ An error in some, out of several particulars of description, in a deed, bond, &c., is not fatal, provided the erroneous portions of description may be rejected as surplusage, and the debt in question (or other thing supposed to be described) can be sufficiently identified by the other particulars of description, in regard to which there is no error or discrepancy.”

This principle is applicable to our question, and is decisive of it. The deed of trust describes, among others, a debt in this manner: It is a debt of the Island-Ford Manufacturing Company, due to the North-Carolina Mutual Insurance and Trust Company; its amount $7,285; its date about 19th of August, 1856; secured by the note of John M. Coffin, John R. Prown, Jesse Thornberg, John Branson, and A. S'. Ilorney; and it is a debt made to raise money for the said company; and the makers of the said note made it for the sole and exclusive use of the said company. Now, as is said in Miller v. Cherry, the difficulty occurs in fitting the description to tlie thing. If a debt answering the description in every particular existed, that would be “ the thing.” But there is no such debt. There is, however, a debt which answers this description in many particulars, and the question is, can the particulars of description, in regard to which there.is an error or discrepancy, be rejected as surplusage, and leave enough to identify this debt as “ the debt” set out in the deed ? The debt in question answers the description in these particulars : It is a debt of the Island-Ford Manufacturing Company; its amount, $7,285; its date 19th of August, 1850 ; it is secured by the note of John M. Coffin, John R. Brown, Jesse Thorn-berg, John Branson, and A. S. Horney ; it is a debt made to raise money for the said company; and the makers made it for the sole and exclusive use of the said company. Here are five particulars of description pointing to this as “ the debt.” If it be not the debt, there is no debt of the sort in existence, for there is no other debt answering the description in a single particular. We are satisfied that these particulars of description do identify the debt in question, as the debt set out in the deed of trust, and the payment of which is there provided for.

In the particular of description as to the creditor, there is manifestly an error. The debt is not due to the North-Carolina Mutual Insurance and Trust Company, but it is due to the Greensborough Mutual Life Insurance and Trust Company, and is secured by the note of Coffin and others, payable to David P. Weir, the treasurer of the said company. There is no such corporation as the North-Carolina Mutual Insurance and Trust Company. Reject that part of the description as surplusage, and we have seen the debt is sufficiently identified by the other particulars of description.

We lay no stress upon th e fac t, that Coffin and the o flier makers of the note by which this debt is secured, were the corporators of the Island-Ford Manufacturing Company, and the general scope of the deed of trust, as appears in its face, was to provide, in the first instance, for the debts of the companj’-, for which the corporators had become individually liable; because we prefer1 to put the decision ou the broad principle settled by Miller v. Cherry, and not to weaken it by calling in collateral aid, when there is no use for it.

Pee CueiaM, Decree accordingly.