Dancy v. Smith, 68 N.C. 179 (1873)

Jan. 1873 · Supreme Court of North Carolina

68 N.C. 179

JOHN S. DANCY, Adm’r. &c., v. Wm. H. SMITH and another.

In a suit by an administrator to recover the amount of a note given to a former administrator (pendente lite) of the same intestate, it is no error for the Judge of the Superior Court to order such administrator pendente lite to be made a party, if, in his discretion, it be necessary to a proper determination of the cause.

(Johnston v. Neville, 177 ante, cited and approved.)

Civil action, tried by Cloud, J., at the Special (January) Terna, 1873, of Halifax Superior Court.

The plaintiff sued the defendants on a note given by them to a former administrator (pendente lite) of his intestate, for property purchased at a sale of su-ch first administrator.

As a defense, tfie defendants allege in their answer that Whitmore, the administrator pendente lite induced the defendant, Wm. H. Smith, to purchase the property at the sale above alluded to, upon the promise that the amount of his bid, to-wit: $354.99, should be credited on a claim which he held against the administrator’s intestate. Soon after the sale, and before the note he gave became due, another administrator was appointed, who refused to carry out the said agreement. There were other allegations in the answer, not material at this time to be stated.

His Honor upon hearing the pleadings, adjudged that Henry B. Whitmore, the administrator pendente lite, be made a party defendant, to the end that the promise alleged in the answer might be litigated. From this judgment the plaintiff appealed.

Battle & Son, and Conigland, for appellant.

Moore & Catling, contra.

Settle, J.

The only point raised by the pleadings is decided in Johnston v. Neville at this t&rm. Here his Honor directed one Whitmore to be made a party defendant upon the suggestion that he had while administrator pendente lite induced the defendant W. H. Spiith to bid at the sale of the effects of his intestate, promising the said Smith that the amount of his bids should go as a payment on á large debt due from his intestate to the said Smith..

This alleged agreement has never been executed; on the contrary the plaintiff now seeks to recover the amount of the defendants’ bid.

Plis Honor it appears deemed it equitable that Whitmore should be made a party; but whether the defendant Smith will be benefited thereby or otherwise it is not for us to •consider.

There is no error.

This will be certified.

Per Curiam.

Judgment affirmed.