Badger v. Daniel

• Decision Date: 30 June 1877
• Court: North Carolina Supreme Court
• Parties: R. C. BADGER and wife v. W. A. DANIEL and others.

77 N.C. 251

R. C. BADGER and wife

v.W. A. DANIEL and others.

Supreme Court of North Carolina.

June Term, 1877.

MOTION in the Cause heard at Spring Term, 1877, at HALIFAX Superior Court, before Buxton, J.

The plaintiffs moved the Court for an order restraining the defendants from making any disposition of certain bonds until the determination of the action then pending and final judgment therein. The case is sufficiently stated by Mr. Justice RODMAN in delivering the opinion of this Court. His Honor allowed the motion and the defendant, Winfield, appealed.

Messrs. W. N. H. Smith, Mullen & Moore and Walter Clark, for plaintiffs .

Messrs. W. H. Day and Moore & Gatling, for defendant .

RODMAN, J.

The case is briefly this: The plaintiffs are creditors of Andrew Joyner, who died in 1856, having devised a lot in Halifax to Mary Daniel, upon whose death it descended to the two defendants, J. J. Daniel and W. A. Daniel. A decree was made in the Court of Equity that said lot be sold for partition, and under the decree the lot was sold on the 6th of November, 1871, by Gregory, Clerk of the Superior Court, and purchased by Conigland who paid a part of the price in cash, and gave two notes of $315 each payable to Gregory, as Clerk, for the residue. On the 15th of August, 1876, Gregory, the Clerk, by order of the Judge of Halifax Superior Court, assigned and delivered said bonds to said J. J. Daniel, he being also the administrator and sole next of kin of W. A. Daniel, who had died since the sale.

In the summer of 1876, J. J. Daniel applied to one Winfield for an advance in money and goods, and promised to assign the bonds to Winfield as a collateral security. Winfield made the advance but did not then receive an assignment of the bonds or take possession of them. Some time afterwards J. J. Daniel, without the knowledge of Winfield, deposited the bonds with Battle, Bunn & Co. to secure a debt due to them. Battle, Bunn & Co. afterwards assigned their debt and the bonds to Winfield for value.

At Fall Term, 1871, of Halifax Superior Court, the plaintiffs brought an action on the bond of W. A Daniel, who had been guardian of the feme plaintiff, to which said Joyner was a surety (and the only solvent surety) and they sought to subject the property of said Joyner to their recovery. We assume that the personal representative of Joyner is a party to this action which is still pending.

At the time Winfield made the advance to J. J. Daniel on his promise to assign the bonds as aforesaid, Winfield had no actual notice of the pendency of the above mentioned suit. Neither had Battle, Bunn & Co. any such notice when they received the bonds as collateral security for the debt to them as aforesaid. Winfield did however have actual notice of the suit when he purchased the debt of J. J. Daniel to Battle, Bunn & Co., and took their assignment of the bonds to himself. On these facts at Spring Term, 1877, the plaintiffs moved the Court for an order requiring J. J. Daniel and Winfield to deposit said bonds in Court, and enjoining them from collecting or disposing of them. The Judge ordered accordingly and from that order Winfield appealed to this Court.

The plaintiffs admit that inasmuch as the sale of the lot was made more than two years after the death of Joyner, the purchaser acquired a good title. Bat. Rev. ch. 45, § 156.

They contend however that they can follow the property of Joyner which the notes stand in the place of, and therefore the notes, in the hands of...