Fuller v. Smith

• Decision Date: 31 December 1859
• Citation: 5 Jones 192,58 N.C. 192
• Court: North Carolina Supreme Court
• Parties: WILLIAM FULLER v. JERRY SMITH, Administrator of JAMES WISDOM, HENDERSON SMITH AND OTHERS.

5 Jones Eq. 192

58 N.C. 192

WILLIAM FULLER

v.JERRY SMITH, Administrator of JAMES WISDOM, HENDERSON SMITH AND OTHERS.

Supreme Court of North Carolina.

December Term, 1859.

Where a bill seeking to attach an equitable interest of an absent debtor, in the hands of an administrator in this State, states that the defendant “is justly indebted to the plaintiff in the sum of two hundred and eighteen dollars and seventeen cents, due by two notes, bearing date the 20th of March 1350,” it was Held a sufficient statement of the debt within the requirements of the 26th section of the 7th ch. of the Rev. Code.

Where a resident of another State endorsed a note to a citizen of this, it was Held, that the law would presume, in the absence of proof to the contrary, that the endorsement was for the endorsee, and that he might attach the property of the maker, a non-resident, in the hands of an administrator in this State, for its satisfaction.

An admission of a fact, made in the Court below by the parties to a suit, for the express purpose of saving the trouble and expense of taking the proof, will be taken as sufficient, here, as well in suits by attachment as in other actions.

Where a defendant in a suit, claimed an equitable interest by virtue of a deed of assignment, which recited that the conveyance was in consideration of the sum of one hundred dollars in hand paid, but there was no evidence of the payment of the purchase-money, except this recital, although such proof was expressly required, and the defendant in his answer did not distinctly aver that it had been paid, it was Held that the Court would not regard the defendant as an assignee, so as to defeat the claim of the plaintiff who was seeking to attach this fund for the satisfaction of a just demand.

CAUSE removed from the Court of Equity of Caswell county.

The bill is filed under the statutes, Rev. Code, ch. 7th, sections from 20 to 26, inclusive, to subject the estate of a nonresident debtor in the hands of an administrator. It appeared from the pleadings, that James Wisdom died intestate in the State of Missouri, about the year 1854, without wife or issue him surviving, and by the law of that State the defendant, William Wisdom, his father, became entitled to his estate, as sole distributee; that the said intestate, James Wisdom, at the time of his death, was entitled to a distributive share of the estate of one Abner Wisdom, who died intestate in the county of Caswell; that the defendant, Jerry Smith, at January term, 1857, of Caswell county court, was appointed administrator of the said James Wisdom, and having qualified, received of the administrator of Abner Wisdom, the distributive share due his intestate, James, amounting to 214.00. The bill alleges that the defendant, William Wisdom, “is justly indebted to the plaintiff in the sum of $218.17, due by two notes bearing date the 20th day of March, 1850, with interest from date;” and it seeks to attach the fund in the hands of the defendant, Smith, for the satisfaction of this claim. Upon the production of the notes, it appeared that one of them was made payable to the plaintiff, and the other to one William Hightower, and endorsed by him to the plaintiff, both notes bearing the same date, March 20th, 1850. It was admitted that Hightower, the payee, in one of these notes, was a citizen of the State of Tennessee; and there was no evidence that the note was endorsed by him to plaintiff as agent or attorney, excepting that Hightower said in the presence of a witness, that he would put this note into the hands of the plaintiff to collect for him. It was expressly admitted by the counsel, in the Court below, that at the time of filing the bill, the defendant, Wisdom, had not enough property or effects in this State upon which an attachment at law could have been levied, to satisfy plaintiff's debt.

The plaintiff's claim was resisted by the defendant, Henderson Smith, who claimed title to the equitable interest in dispute, by virtue of an assignment made to him by the said William Wisdom, on the 18th day of September, 1856, in the State of Missouri. The following is a copy of the deed:

“Know all men by these presents, that I, William Wisdom, of the county of Randolph, and State of Missouri, for and in consideration of one hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, have this day sold, and by these presents, do grant, bargain and sell unto Henderson Smith, of the county and State aforesaid, all the right, title and interest, which, as legatee or devisee, I may have in and to the estate of Abner Wisdom, deceased, late of the county of Caswell, State of North Carolina, and authorise him, &c.; also, all my right, title and interest in the estate, money, &c., bequeathed by said Abner Wisdom, deceased, to my sons, William T. and James J. Wisdom, both of Cooper county, in the State of Missouri, and I authorise him to sue for and receive any and all moneys, estate and property of whatever character to which they would be entitled, if living.

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                ¦In witness, &c. (Signed,)¦WM. WISDOM, [Seal.]¦
                +---------------------------------------------+
                

Test. Turner Wisdom.

This deed was duly proved by one Willie, who deposed to the hand-writing of the grantor therein.

The answer of defendant, Henderson Smith, states “that on the 18th day of September, 1856, the defendant, William Wisdom, conveyed to this defendant by deed, properly executed, in the county of Randolph, State of Missouri, for the sum of one hundred dollars, all his right and interest in the county of Randolph, State of Missouri, for the sum of one hundred dollars, all his right and interest in the fund mentioned in the bill.” There was no evidence of the payment of the purchase-money, except the recital in the deed, although the defendants were notified that such additional proof would be required.

The bill seeks to have this conveyance set aside as being a fraud upon the plaintiff, or to have the grantee declared a trustee for him. It was agreed by the counsel, in this case, as to the amount of the fund in dispute. The bill was duly sworn to, but the answer of defendant Henderson Smith was not.

Fowle, Hill, J. W. Graves and Bailey, for plaintiffs .

Norwood, Winston and Kcrr, for the defendant .

BATTLE, J.

The bill is filed under the act of 1852, ch. 50, which is embraced in the Rev. Code, ch. 7, sec. from 20 to 26, both inclusive, and its purpose is to attach the...