Burgwin v. Richardson
| Citation | 10 N.C. 203 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1824 |
| Parties | BURGWIN v. RICHARDSON.—From New Hanover. |
If an obligation and a mortgage be given to secure the payment of money on a bill to foreclose, alleging the loss of the obligation and offering an indemnity, it seems the loss of the bond must be proved; otherwise, the court will not compel the mortgagor to accept a counter security.
RICHARDSON bound himself by an obligation, dated 12 February, 1812, to pay to Burgwin $1,621 on 12 August, 1814, and to secure such payment by deed of bargain and sale of even date with the bond conveyed to Burgwin certain slaves and land, with a proviso in the deed that it should be void if the obligation was paid.
The bill was filed March, 1820, and set forth the above facts, and that Richardson had made certain payments, but that great part of the debt was still due, and that interest had accrued; that the obligation had been lost or mislaid by accident, and that Richardson had been
requested to pay, on indemnity offered, and had refused, and prayed a foreclosure of the equity of redemption of the property mortgaged, and general relief.
The answer admitted the execution of the obligation and mortgage as charged, and claimed an allowance for certain payments; it neither admitted nor denied the loss of the obligation, and an offer of indemnity specially, but concluded with a general traverse. There was no proof in the cause; it stood for hearing on bill and answer, and a report of the master ascertaining the amount due on the obligation. To thereport there were several exceptions, none of which was allowed by the court.
On behalf of the defendant it was moved to dismiss because there was no proof of the loss by accident, as alleged in the bill. It was contended that as the obligation was negotiable by our law, that it should be produced or accounted for, and that the court would not compel the defendant to accept a counter security but upon proof that the negotiable security had been lost; otherwise the presumption that the obligation had been negotiated, and that it had been lost by accident, was equal, and the complainant could not call on the court to affirm by their decree that it had not been negotiated, but had been lost.
To this it was answered that the obligation had been lost when the bill was filed, but had been subsequently discovered, and was now in possession of complainant's counsel below, and a motion was made for a decree, to go into effect upon the...
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