Hunt v. Bass

• Decision Date: 31 December 1832
• Citation: 17 N.C. 292
• Court: North Carolina Supreme Court
• Parties: WILLIAM HUNT v. EDWIN BASS ET AL.

17 N.C. 292

WILLIAM HUNT

v.EDWIN BASS ET AL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1832

1. A deed obtained by sureties for their indemnity, under a threat of legal process in case of refusal, cannot be set aside by the bargainor for duress in its execution.

2. Property conveyed to a trustee for sale, and sold by him under an agreement with the vendee to be jointly interested in the purchase, is subject to the original trust.

3. A trustee for sale should be indifferent between the debtor and the creditor, and should not sell in disregard of the interest of the former, unless it was so agreed.

4. If the title of some of the trust property is disputed, he should not sell it.

until the rest is exhausted.

5. And the debtor has a right to the trust property which has been improperly sold by him, and which afterwards comes to his hands or those of his confederates, even if originally sold to one against whom he had no right to relief.

THE case made by the bill, answers, and proofs was that the plaintiff, having been appointed the administrator of Coffield Bass, a half-brother of the defendants Edwin and Gideon Bass, whose mother he had married, had given the defendant Gideon and Matthew Sykes, also a defendant, as his sureties, that he had received of the assets of his intestate about $800. Soon after his marriage he discovered that his wife had by a settlement made before it took place, but without his knowledge, conveyed three negroes to her children by her first husband, of which the intestate was one. The plaintiff filed a bill to set aside thatsettlement, and by the advice of his counsel procured his letters of administration to be revoked and one Hammonds to be appointed administrator. The next of kin of the intestate were his brothers and sisters of the whole and half-blood, among the latter of which were the defendants Edwin and Gideon Bass. Before the letters to the plaintiff were revoked, he had made payments which reduced the amount due from him to the next of kin. At February Term, 1828, of Nash County Court the plaintiff came to the courthouse, where he got very much intoxicated, and lost a large sum of money at cards. The defendants Sykes and Gideon Bass, hearing of this, demanded counter-security, which the plaintiff gave them by conveying his land and personal property, including the three slaves in dispute between him and the next of kin of Coffield Bass, to the defendant Edwin, in trust to indemnify them. Before the plaintiff consented to do this, his sureties threatened to take instant measures to have his accounts closed and the balance collected. A sale of the property conveyed to the defendant Edwin was by him advertised for 15 March following, at the plaintiff's house, but was not known

to either the plaintiff or to Sykes until within a few days of that time. On that day the plaintiff requested that the sale might be postponed to the next court week, which being refused, he asked that his administration account might be settled in order to prevent the trustee from selling for an amount exceeding the balance; this was also refused, and the sale proceeded, when two negroes which had cost the plaintiff $800 were sold to Edmund and Isaac Bass, brothers of Edwin and Gideon, for $477. After this the plaintiff told the trustee that the amount raised was sufficient to pay the balance due by him to the next of kin of Coffield Bass and begged that any further sale might be postponed until he could settle with Hammonds, who was present; which was refused, and the negroes in dispute between the plaintiffs and the next of kin were then offered. The plaintiff earnestly requested that they might not be sold, asthe doubt respecting the title to them would prevent them from bringing their value, and in lieu of selling them, he asked that other property, the title of which was clear, might be sold. But while the plaintiff and a friend were endeavoring to effect a settlement with Hammonds, these slaves were sold at about one-tenth of their value, and purchased by one Moore, with whom the Basses quarreled for bidding, and who, in the course of a few days, transferred his purchase to the defendant Edwin. All the negroes purchased were held on the joint account of the defendants Edwin and Gideon and such others of the next of kin as chose to claim an interest in them, rather than to receive their share of the surplus in money.

The bill charged that the deed of trust had been obtained by duress, and prayed to have the sale declared to be void and the defendant Edwin to be a trustee for the plaintiff, and for an account of the hires of the slaves since the sale.

RUFFIN, J. The allegation in the bill that the deed of trust was obtained by improper means is not supported. Sykes and G. Bass had a right to a counter-security, and the dissipation of the plaintiff about that time made it an act of but common prudence then to apply for it. The witnesses prove that although the plaintiff had been in a deep debauch, during which he had been plundered at the gaming table, he had so far recovered from it, and regained his faculties as to be capable of understanding the instrument he executed, which was read and explained to him and understood by him. Then as to the idea of coercion, and that sort of restraint on his free will which we look upon here as a

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