Hall v. Davis, 56 N.C. 413, 3 Jones Eq. 413 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 413, 3 Jones Eq. 413

THOMAS L. HALL, Executor of ALEXANDER CARTER, against SETH DAVIS, Administrator of JAMES P. DAVIS.

Where an agent to collect money, took specific chattels in payment of the debt, and the principal brought an action at law on the contract of agency, during- the pendencj’’ of which more than three years elapsed; it was Held that he might take a nonsuit and follow the property in equity and the latter suit having been brought within a year after the nonsuit, it was Held further, that it was the same cause of action in both courts, and that the latter suit was within the saving of the statute of limitations.

Causic removed from the Court of Equity of Craven county.

James P. Davis, the defendant’s intestate, of Duplin county, was employed by Alexander Carter as agent, and attorney in fact, to collect certain debts due him by bonds, notes, and accounts, on divers persons, and amongst them, was a bond on Zachariali Davis, jun’r., for seven hundred dollars, due the 1st day of June, 1845, and dated lltli April, 1844, with interest from the date. The most of these debts were collected, but on the one last mentioned he caused a suit to be commenced in the County Court of Duplin, in the name of the plaintiff’s testator, to the use of the said James P. Davis, and at July Term, 1846, of that court, he obtained a judgment for the principal money, with $47,95 interest. In the January following, (1847) the said James P. Davis made an adjustment, by which he received, in satisfaction of this judgment, live several bonds, each for a fifth of the whole, payable one, two, three, four and five years, after date, with Thomas Davis as surety thereupon, which made the debt perfectly good. The plaintiff states that he is not informed whether these latter bonds were made payable to his testator or to the defendant’s intestate.

Afterwards, and before the last of these bonds became due, the said James P. Davis took from the obligors three negro slaves, to wit, Mary and her two children, Rachel and Rosa, in full discharge and satisfaction of these bonds, whereupon the same were delivered up to them, and a conveyance of the slaves was made to him. The slaves remained in the possession of the said Davis from that time until bis death in-. In the meantime, the slave Mary had four other children, to wit, Julia, Ben, Charlotte and John. On the death of the said Davis, Mary and her children went into the hands of his administrators — the defendant and one Jarman, who has since died. On the 27 th of Sept., 1849, the plaintiff’s testator brought suit against the administrators of Davis in the Superior Court of Craven, for the money due and owing from their intestate, as agent, which pended until September, 1853, when the plaintiff took a nonsuit; in the meantime, the death of the testator, Alexander Carter, had been suggested of record (at September, 1852,) and his executor, the present plaintiff, was made a party, and within one year thereafter, to wit, at March Term, 1854, the bill, in this case, was filed against the surviving administrator, praying that the defendant may be declared a trustee, for the benefit of the plaintiff as executor of Alexander Carter as to these slaves, and that he may be^decreed to deliver them to the plaintiff, and account.

The defendant answers, and relies upon the statute of limi-itations.

The cause being set down for hearing, was sent to this Court.

Donnell, for the plaintiff.

J. W. Bryan, for the defendant.

Peaksox, J.

The-five notes taken in satisfaction for the note of $700, were the property' of the plaintiff’s testator. These notes were converted by the defendant’s intestate for the slaves now in controversy. So the plaintiff has a plain equity to follow the fund, and have the defendant declared a trustee for him in respect to the slaves.

The defendant’s counsel could not deny this equity, and was forced to rest the case upon the statute of limitations. This is a constructive trust, and Equity follows the analogy of the Lawr in respect to the bar of the statute. It is insisted that the writ issued in the action of assumpsit, for the amount of the notes, was a demand, (which was in September, 1849,) and that the defendant is protected by the statute and more than three years’ adverse possession. A nonsuit was entered, in the action, September, 1853, and the bill was filed, March, 1854. The question is, did the filing of the bill within a year after the nonsuit, prevent the operation of the statute ? If a new action had been commenced within a year, it would not have been barred. “ Equity follows the Law,” and must give to the filing of a bill within the year, for the same cause of action, the like effect that a new action within the year would have had at law. It is said this might be so, provided the relief prayed for had been an account of the money that ought to have been collected on the notes, but as the bill seeks to recover the slaves, it is not for the same cause of action.

The defendant is put in tins dilemma: The demand made by the writ in 1849, either extended to the slaves as an incident or emanation of the cause of action given by the demand, or it was restricted to the money. If the former, then this bill is for the same cause of action, and the principle applies. If the latter, then there has been no demand in respect to the slaves, and consequently there has been no adverse posses-, sion; for it is well settled, that as between principal and agent, bailor and bailee, and the like, the statute does not commence running, and the possession is not adverse, until the relation ends, or there is a demand.

¥e are satisfied, however, that the cause of action is the same. At Law, the remedy is confined to the value of the notes ; in Equity, it is broader, and the party is allowed to follow the fund in its converted state, as a more adequate remedy for the inj nry; but still it is the same in j nry, or ground of complaint, or cause of action. Equity may give the same relief as is given at Law, or it may give a more adequate relief, and if the legal analog}' is no bar to the former, as a matter of course, it is not a bar to the latter; for although the remedy is different, the injury is the same. The plaintiff is entitled toa decree.

Pee Oueiam:, ' Decree accordingly.