Francis v. Reeves

• Decision Date: 17 December 1904
• Citation: 49 S.E. 213,137 N.C. 269
• Parties: FRANCIS v. REEVES et al.
• Court: North Carolina Supreme Court

49 S.E. 213

137 N.C. 269

FRANCIS v. REEVES et al.

Supreme Court of North Carolina

December 17, 1904

Appeal from Superior Court, Haywood County; E. B. Jones, Judge.

Action by T. L. Francis against W. T. Reeves, administrator, and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This action is prosecuted by the plaintiff against the defendants W. T. Reeves, administrator of K. Reeves, deceased, V. S Lusk and wife, and others, for the purpose of subjecting certain lands, or the proceeds thereof in the hands of Mrs Lusk, to the payment of a judgment recovered against the defendant administrator of K. Reeves. The record shows that during the year 1886 A. J. Reeves executed his note to the plaintiff, with Kindred Reeves as surety, for $650. Plaintiff indorsed the note to one Herren, who indorsed it to Garrett. The surety, K. Reeves, died in 1886, devising his property including the real estate described in the complaint, to his three sons, W. T., A. J., and R. C. Reeves. Failing to name an executor, W. T. Reeves was appointed administrator c. t a., and qualified in 1888. He did not advertise for claims. In 1898 Garrett sued the principal, W. T. Reeves administrator, and the plaintiff on his indorsement, and recovered judgment. The other parties being insolvent, the plaintiff paid the judgment and took an assignment thereof. He afterwards recovered judgment against W. T. Reeves, administrator, on said judgment. George H. Smathers testified as follows: "That some time in 1890 A. J. Reeves applied to him to secure a loan, and at the time he had a number of claims and judgments against the said Reeves for collection, and was anxious to secure a loan. Reeves was to pay him $25 as a fee to secure the loan. That he went to Asheville, and saw Col. and Mrs. Lusk. Went first to Col. Lusk, and he said the money belonged to his wife, and that I would have to see her. That he did see her, and she said that she had had trouble about loaning money, and wanted to know if the loan was absolutely secure, and I told her that there would be no trouble about it, and she consented if the title should prove all right, and that there was no incumbrance on the land. That he told Col. and Mrs. Lusk that he would come back and look up the title and incumbrances, and Col. Lusk was to come out afterwards and verify his examinations as to records, which he did before the trust deed was executed. That he had heard of the note testified to by Reeves, and told A. J. Reeves that the matter would have to be settled, or rather, Reeves told him about the note at the time he applied for the loan. That Reeves told him that his father owed nothing at the time of his death, but was surety on this note, but that the note had been adjusted; that it had been transferred from Francis to Herren, and from Herren to Garrett, and that Garrett had given it to W. T. Reeves' wife as an advancement; and that he told W. T. Reeves that it was not necessary to advertise if his father owed no debts, but told him the safer plan was to follow the law, and that he was sure that Reeves said there was no debts. That A. J. Reeves made the statement before the loan was made that the Francis note had been adjusted, or had been given by Garrett to Reeves' wife. That his recollection is that the matter was discussed in the presence of Col. Lusk. That he stated to Col. Lusk that there was no debts against the estate, but that K. Reeves had signed a note as surety, but that Garrett, the party holding the note, had given it his daughter, wife of W. T. Reeves, and that after this conversation he and Col. Lusk got down the Code, and read section 1442, and afterwards Col. Lusk considered the loan safe, and the loan was made, and I was named as trustee. Think that the loan was made about this time, but don't know whether the deed was drawn that day. That he said to Col. Lusk, 'I suppose your wife wants you made trustee,' and he said, 'There was nothing said...