10 D.C. 1 (D.C.D.C. 1879), 9765, Naudain v. Ormes

• Docket Nº: EQUITY.— 9765.
• Citation: 10 D.C. 1
• Party Name: THOMAS N. NAUDAIN v. JAMES M. ORMES AND J. STANLEY JONES.
• Attorney: Enoch Totten , for complainant, James S. Edwards , for defendant Jones.
• Court: Supreme Court of District of Columbia

Page 1

10 D.C. 1 (D.C.D.C. 1879)

THOMAS N. NAUDAIN

v.

JAMES M. ORMES AND J. STANLEY JONES.

EQUITY.— No. 9765.

Supreme Court, District of Columbia.

September Term, 1879

When a judgment creditor is indebted to the complainant upon certain promissory notes, and the complainant asks that such judgments may be set off against the amount due him upon such notes, it is necessary to allege in the bill of complaint filed for that purpose that such judgment creditor is insolvent, or to aver some other fact or circumstance which prevents the complainant from having an adequate remedy at law for the recovery of the amount due on his notes.

STATEMENT OF THE CASE.

Demurrer to bill of complaint. The facts stated in the bill are substantially as follows:

The plaintiff was the owner and holder of two promissory notes, dated August 26, 1872, made by the defendant Ormes, payable to the order of and endorsed by the other defendant, Jones. They were transferred, before maturity, to the plaintiff, and demand of payment and notice of dishonor were waived by the defendant Jones, the endorser. The notes were secured by trust deeds on real estate in the city of Washington. The notes not being met at maturity, the property was advertised and sold under the powers contained in the deeds of trust, and the proceeds were not sufficient, by the sum of $1,836.57, to pay the notes. The property was bought at the sale by the plaintiff, who now owns it.

That one Mary E. Godey, the executrix of the last will of William H. Godey, about the 26th day of September, 1873, recorded a judgment against the defendant Ormes in the sum of $342.18, and afterwards duly sold and assigned the same to Jones, which assignment was entered of record. That the said judgment was recovered prior to the recording of said deeds, and thereupon became a lien upon said property.

That Jones is the owner of said judgment, and refuses to permit the said judgment to be credited upon the amount due from him to plaintiff upon the notes, and threatens to issue a writ of execution to be levied upon said property, and complainant fears that if he should institute proceedings upon said notes, Jones would sell and transfer his interest in said judgment to defeat the application of the amount of said judgment as a credit upon the amount due from Jones upon said notes. The complainant is willing that the amount of said judgment, interest and costs, may be credited upon the amount...