Grant v. Bell
| Decision Date | 31 October 1882 |
| Citation | 87 N.C. 34 |
| Court | North Carolina Supreme Court |
| Parties | JAMES W. GRANT, Adm'r, v. JOSEPH J. BELL. |
CIVIL ACTION for account and settlement, tried at Spring Term, 1880, of NORTHAMPTON Superior Court, before Gudger, J.
In 1841 one William B. Lockhart died, leaving a last will, whereof he appointed as executors one Gray and the defendant, who had intermarried with one of his daughters, she, however, being then dead.
By said will the testator devised a certain tract of land known as the “Gee tract,” to his widow, Sarah Lockhart, requesting her however to permit the defendant to occupy it until he should contract another marriage, and thereafter to cultivate it for the benefit of William T. Bell, who was the infant son of the defendant and grandson of the testator.
By other clauses of his will he devised and bequeathed to the defendant other lands, and several slaves and stock, &c., to be his until he should marry again, and upon that event to be the property of his said son William T.
Sarah Lockhart, the widow of the testator, died in April, 1855, leaving a will in which she devised the said “Gee tract” of land to her grandson, the said William T., and bequeathed to him several other slaves, and immediately thereafter the defendant became the guardian of his said son, and took his estate into his keeping and management.
The defendant married a second wife in August, 1844, but continued to have the use of the “Gee tract” and the other property given him under the will of the testator, William B. Lockhart, until his son arrived at age.
After his arrival at age, he and the defendant formed an agricultural partnership for the cultivation of the “Gee tract” of land and an adjoining place known as the “Rex tract,” and the defendant afterwards contracted with him for the purchase of a part of the “Rex tract.”
The defendant and his son attempted to have a settlement of their accounts, but in consequence of the latter's ill-health it was not effected, and in 1863 the son died, leaving a will in which he bequeathed to an uncle, one B. F. Lockhart, whom he also appointed his executor, two-thirds of his whole estate, and to one Joseph G. Lockhart the residue--the defendant being still liable to account, by reason of the premises as trustee, partner and guardian.
In 1864, B. F. Lockhart, as executor of said William T., filed a bill in equity against the defendant for an account and settlement of all their matters, when it was referred to the then clerk and master to take and state the account, who made a report ascertaining the amount due from the defendant in his several capacities--the amount thus ascertained the plaintiff insists was about $20,000, whereas the defendant insists that it was about $12,000.
This suit gave rise to great bitterness of feeling between the parties to it, and was conducted with much acrimony on their part--the said executor having for his attorney the late Thomas Bragg, and the defendant being represented by Matt. W. Ransom and David A. Barnes.
Through the intervention of their respective attorneys, the parties were brought together and an adjustment effected, in which the executor agreed to take a decree of $12,077.34, and to accept in part discharge therefrom some notes, which he, as an individual, was owing to the defendant, and accordingly this arrangement was carried out on the 25th day of September, 1868, the defendant paying the executor some money, and delivering up the notes on him agreed to be taken, and the latter giving him a receipt in full of all demands.
The estate of the said William T. Bell, the testator of said B. F. Lockhart, was indebted to parties who took judgment against his executor, which judgments remain unpaid, and in January 1875, his letters were revoked, and letters of administration de bonis non, cum testamento annexo, upon the estate of the said William T. Bell, have since been granted to the plaintiff.
The acquittance given by the executor, Lockhart, to defendant at the time of their adjustment, is as follows:
Witness: M. W. RANSOM.
No such decree as the one referred to in that instrument can be found on the files of the court.
W. H. Gray, who was surety on the bond of Lockhart, as the personal representative of W. T. Bell, was also his surety on one of the bonds, which the defendant held on the said Lockhart, and which was taken, as has been said, by him in part satisfaction of the alleged decree, and he was present at the adjustment made between them, and gave his approval to it.
In his complaint the plaintiff alleges that at the time of making the settlement with the defendant, the executor, Lockhart, was in very straightened if not insolvent circumstances, that his home had been sold to one Long, who had, however, given him an opportunity to redeem it, and he had been sued by some of his creditors, and was threatened with a suit by the defendant, who living in Virginia could sue in the federal court where a right to homestead as against debts contracted before 1868 was not recognized. That taking advantage of his distressed condition, the defendant fraudulently prevailed upon him to compromise his suit and to accept greatly less than was due the estate of his testator, as well as to receive his own private debts in part discharge thereof, and he prays that the receipt given in consequence of a settlement, so covinously procured, should be declared void, and that the defendant may be now required to account fairly for all the several matters involved in the premises.
On the other hand the defendant alleges that it was a fair and just settlement of all he owed, proposed and urged by Mr. Bragg, as the counsel for the executor, and conducted by Messrs. Ransom and Barnes on the part of the defendant. That defendant did not then believe the executor to be insolvent, but whether so or not, there was no effort to intimidate him and no duress put upon him. That it was no compromise of the amount due from him to the estate of his son, but a payment of the whole sum found to be due after a careful investigation and full proofs, as to every matter connected with the transaction between his son and himself.
On the trial in the court below the plaintiff introduced as evidence the records of many judgments taken against B. F. Lockhart, and of actions still pending against him--all being for debts contracted prior to 1868, and amounting in the aggregate to some $17,000, and the sheriff's return of nulla bona to the executions issued upon the judgments.
To some of these debts the defendant was bound as the surety of the said Lockhart.
He also introduced as a witness T. W. Mason, who testified that in a conversation with him, the defendant said that he had paid Lockhart, in his settlement with him as executor, only some $10,000 or $12,000, and this he had paid partly in bonds he held upon him. This witness also testified that the feeling between the parties anterior to the settlement in 1868, was exceedingly bitter, but that after that time their relations were cordial and friendly, and that he heard the defendant say, soon thereafter, that he intended to purchase a tract of land then about to be sold, for Lockhart's family, and that his purpose was to befriend him.
The defendant introduced as witness Messrs. Ransom and Barnes, who had been of counsel for him in the matter, to whom it had been referred to take the account between the parties to the action of Lockhart against the defendant, had made two reports, one based on the rents and hires of the property, and the other upon the average profits derived therefrom, and that, just upon the eve of going to trial, Mr. Bragg, of counsel for Lockhart, approached them, with the suggestion that the matter should be settled, and a proposition to settle according to what was known as the “rent and hire account.” The defendant insisted that the hires were too high, and proposed then and there to furnish proof of that fact; but after further consultation, they settled according to said account, except that an abatement of $1,000 was made on account of the alleged extravagance of the charges, and it being further stipulated that the amount to be paid should be accepted in good bonds in lieu of cash. Accordingly the settlement took place on this footing.
Amongst the bonds agreed to be taken were some which the defendant had upon Lockhart--some with, and some without surety. Also one on N. M. Long, which Lockhart afterwards used in paying a debt he owed to said Long.
The acquittance, before set out, was then prepared by the witness, Mr. Ransom, and signed by Lockhart; and Mr. Bragg, at the same time, and at the same table, drew the decree to be filed in the cause--the presiding judge having delayed the adjournment of the court in order to sign it.
Mr. Ransom also testified that in the settlement each party stood upon his own rights, and insisted upon receiving all that was due him; also, that they were very hostile towards each...
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