Thigpen v. Balfour, 6 N.C. 242, 2 Mur. 242 (1813)

Jan. 1813 · Supreme Court of North Carolina

6 N.C. 242, 2 Mur. 242

Lemuel Thigpen v. William Balfour.

From Edgcombe.

A. .being1 security' for B. to C. in a bond, G. di.ed, and. E. got posse?-sion of the bond after iiis death, and sold it'tó F. wlio 'threatened to sue A; and A. to avoid suit, gave a new bond-for thfe-debt and took. up the old one. It was afterwards discovered by A., that -the old bond had been discharged by B 5 F., was. ignorant of this fact when he purchased the bond from C. but knew it before he got the new bond from A. and' did not disclose it to A. E. was solvent When F. discovered that the old boild had been discharged-, but was insolvent, when this fact came to the knowledije of A. Equity-will relieve A. from the payment of the money on the new bond, on the ground of the concealment by him of the fact, that the old bond was paid, at the time he got tlie'neW'bond from A.

The bill charged tiiat the. complainant became bound as surety for one Causey, in a,n obligation to.one Stringer, for forty-eight dollars fifty cents, payable in December, 1T96. That Stringer removed to Georgia, and Causey to the county of Pitt, in this state, about forty miles from the complainant, who, inconsequence thereof, heard nothing of the debt until 1804, when Balfour presented the obligation and demanded payment.

That Stringer died in Georgia, and complainant understood that one Ruffin, a man of little worth either in character or property, went to that state, and in searching among Stringer’s papers, found the bond, which h® brought to this state, and sold, or pretended to sell it to Balfour. That complainant, to avoid a suit with which Balfour threatened him, gave a new bond for the debt and took up the old one, which lie then believed to be due. And on applying to Causey for payment, Causey informed him that he had paid the debt to Stringer soon after it was contracted, and that Stringer had informed him that he had destroyed the bond; That complainant thereupon commenced a suit against Causey $ but having learned since, that the debt really had been paid by him, be had’abandoned the hope of recovery; and he charged that he believed Balfour knew that the debt had been paid.

The defendant, in his answer, insisted that Ruffin had paid a valuable consideration lor the bond, and that he, tiie defendant, bought it fairly from Ruffin for ¿£20, which Ruffin owed him ; but he liad not made this .purchase, until complainant had voluntary agreed to give a new bond, upon a further day of payment being allowed. He denied all collusion with. Ruffin, and also notice of the payment of the first bond, when the second was given, Be alledged, that he could have secured Jthe debt which Ruffin owed him, if complainant had not consented to renew the bond; for that Ruffin was then in possession of property, but had since become insolvent, so that he must lose his money if deprived of the benefit of the judgment. He further insisted, that complainant could not rightfully claim the interposition of a Court of Equity for facts, which, if true, would have formed a defence at law.

Upon the issues made up and submitted to the jury, they found that the defendant, when he purchased the old bond, had not notice tiiat the debt was paid, but he had notice of that fact before lie took the new. bond payable to himself. They further found that Ruffin was solvent from January, 1804, till the April following, shortly after which time he became insolvent. The ease was submitted without argument, and

IIax.1., Judge,

delivered the opinion of the Court:

The jury have found, that at the time the defendant purchased the old bond, he had no knowledge that it liad been paid. If by that purchase he had obtained any legal advantage of the complainant, and one or the other must have suffered in consequence of Ruffin’s insolvency, equity would not interfere, but leave the loss where the law placed it. . But by that purchase he gained no legal advantage. He could not have recovered at law upon that bond, for Thigpen liad a good defence. Afterward» during the solvency of Ruffin, the jury find that the defendant had full notice that the bond was discharged; yet with this notice, and before Ruffin’s insolvency, lie procured complainant to give him the. bond on which he had obtained judgment, founded on no other consideration than the circumstance, that Thigpen bad been security in the first bond. Here was such a concealment of the true situation in which the parties stood, and such an attempt to wrest money out of the complainant, without any consideration, when the defendant ought to have sought his remedy elsewhere, if Ruffin really owed him, that this Court ought to interfere. It is therefore ordered and decreed, that thp Defendant pay to the Complainant, the full amount of all the money which he received upon his judgment at law, with interest thereon from the time he received it, as well as all costs at law which Complainant was bound to pay, together with the costs of this suit.