Brandon v. Allison

• Decision Date: 31 January 1872
• Citation: 66 N.C. 532
• Court: North Carolina Supreme Court
• Parties: M. H. BRANDON, Administrator of J. D. COWAN v. T. A. ALLISON et al.

66 N.C. 532

M. H. BRANDON, Administrator of J. D. COWAN

v.T. A. ALLISON et al.

Supreme Court of North Carolina.

January Term, 1872.

1. To an action by an administrator, appointed before 1st July, 1869, on a note executed to himself as administrator, for the purchase of land sold under a license from Court. a judgement quando, obtained previously by the purchaser against such administrator is inadmissable as a defence, either by way of set-off or counter-claim.

2. Whether such would be the case if there were no other debts against the estate, and the defendant was certainly entitled to have the assets applied to his claim, quere.

This was a civil action, tried before His Honor Judge Mitchell and a jury, at Fall Term 1871, of Iredell Superior Court.

The action was founded upon a note given by the defendants for the purchase of real estate sold by the plaintiff as administrator, to pay debts, under a license from Court.

The defendants, by their answer, offered to set up as a set-??off or counter-claim a judgment quando, obtained theretofore by the defendant, Allison.

The plaintiff replied that there were other outstanding judgments, more than sufficient to absorb the amount of any recovery in this action and all other assets which are in, or may come into his hands.

On the trial the defendant moved to non-suit the plaintiff, on what ground, does not clearly appear, but as stated in the argument, because the plaintiff could not maintain a seperate action upon a note given at what, the defendant contended, was a judicial sale.

Under instructions from His Honor the jury disregarded the proposed counter-claim and rendered a verdict for the full sum demanded in the complaint. His Honor also refused the motion to non-suit.

From the judgment rendered on the verdict the defendants appealed.

J. M. McCorkle, Armfield and W. P. Caldwell for the appellants .

Phillips, Furches and W. H. Bailey for the appellee .

READE, J.

Before the Act of 6th April, 1869, which went into effect 1st July. 1869, preventing all preference in the payment of debts by executors and administrators, and requiring all debts of the same class, in their order, to be paid pro rata--executors and administrators had the right to prefer one debt to another of equal dignity. And this case stands under the old law, because administration was granted before the Act of 1869. There being other debts equal in dignity to the claim of the defendant, the plaintiff had the right to...