Boyd v. Hawkins

• Decision Date: 31 December 1842
• Citation: 37 N.C. 304,2 Ired.Eq. 304
• Parties: RICHARD BOYD v. JOHN D. HAWKINS.
• Court: North Carolina Supreme Court

2 Ired.Eq. 304

37 N.C. 304

RICHARD BOYD

v.JOHN D. HAWKINS.

Supreme Court of North Carolina.

December Term, 1842.

A trustee cannot, without the unequivocal assent of cestui que trust, act for his own benefit in a contract on the subject of the trust.

If he extinguishes an incumbrance hanging over the property confided to his care out of his own funds, he can only claim to be re-imbursed for his outlays in this respect.

This cause was transmitted for hearing by consent of parties, at Fall Term, 1842, of Warren Court of Equity, to the Supreme Court. The facts of the case are stated in the opinion delivered in this court.

Iredell for the plaintiff .

Badger & W. H. Haywood for the defendant .

GASTON, J.

On the 18th of February, 1823, Alexander Boyd conveyed to Henry Fitts, sundry tracts of land, among which was the tract particularly described in the bill, and which is situate partly in the county of Granville, and partly in the county of Warren, and sundry slaves, to be held under the said Fitts, his heirs, executors, administrators and assigns, upon trust to sell the same for the indemnity of Richard Boyd and Francis Thornton against heavy responsibilities, which they had incurred for the said Alexander, and as his sureties in the State Bank of North Carolina, and afterwards, on the 20th of July, 1824, with the assent of the said Alexander, Richard and Francis, the said Fitts assigned and conveyed all his estate in the trust so described to John D. Hawkins, upon the said trust. The first mentioned conveyance was registered, within the time prescribed by law for the registration of deeds of trust, in the county of Warren, but not in the county of Granville; whereby the same became invalid in law, so far as it conveyed the part of the said tract lying in the latter county, as against the creditors of the said Alexander. The Bank of Newbern, one of Alexander's creditors, having obtained a judgment against him, caused their execution to be levied on the said part, under which it was sold and purchased by their Attorney, William Robards, on the 6th of January, 1826, who immediately thereafter sold the same to the said John D. Hawkins. Richard Boyd, having been compelled to pay very large sums for the said Alexander, upon the liabilities mentioned in the deed of trust, filed his bill against the said Hawkins, Alexander Boyd and Thornton, wherein he charges that he paid the same wholly out of his own effects, or from such property of the said Alexander as he could subject to the payment thereof, without calling on the said Francis to contribute, and that he hath no right to require of the said Francis to contribute thereto, because the liabilities of the said Francis had been incurred at his, the said Richard's request; that the said Alexander is indebted to him, because of the said payments, to an amount exceeding $20,000, and that the said Alexander has become hopelessly insolvent; and that the defendant Hawkins hath either sold the part of the tract of land aforesaid lying in the county of Granville, and hath received the proceeds thereof, for which he has never accounted to the plaintiff, or now holds the same as his own property. The prayer of the bill is, that, if the said defendant Hawkins hath sold the part of the said tract situate in Granville, he shall account to the plaintiff for the proceeds thereof, and, if he hath not sold the same, may be compelled to convey it to the plaintiff, and for general relief. The bill was taken pro confesso, and set down to be heard ex parte against the defendants Thornton and Alexander Boyd. The defendant Hawkins put in his answer, wherein he admitted all the material facts charged in the bill, except that, in regard to the indebtedness of Alexander Boyd to the plaintiff, he says that...