Matthews v. Joyce

• Decision Date: 31 October 1881
• Court: North Carolina Supreme Court
• Parties: T. D. MATTHEWS and others v. R. JOYCE and others.

85 N.C. 258

T. D. MATTHEWS and others

v.R. JOYCE and others.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION in nature of a bill of review, heard at Spring Term, 1879, of ROCKINGHAM Superior Court, before Buxton, J.

The following are the facts set out in the plaintiff's complaint upon which rests their equity to a review and reversal of the impeached decree.

On March 17th, 1859, Ed. M. Matthews executed to the defendant, Walker R. Smith, a deed conveying his personal estate and a tract of land, described as containing four hundred and twelve acres, in trust to secure a debt of $1,000 due to William Dalton, his wife's father, and to indemnify him, as surety on several bonds, and among them one due to John Joyce, the testator of the defendant, Rea Joyce, in a sum represented to be “six hundred dollars more or less, the date of which is not remembered,” and for the like indemnity of Thomas D. Price, as his surety upon another bond. Under the authority and directions of the deed, the land was exposed to sale in January, 1860, by the trustee, and bid off by John H. Price, at the sum of $8.10 per acre, and on the same day for the consideration of fifty dollars, he assigned his bid to said William Dalton for the benefit of said E. M. Matthews. No deed for the premises has been executed to the assignee, and the possession has continued in Matthews until his death, in 1863. At the time of the sale, Dalton owned a large estate and the effect of the small payment and transfer is alleged to be to make him a trustee for the former, and the transaction not intended to be, nor in fact was it a fraudulent arrangement to defeat or prejudice the rights of the creditors of either. Upon the death and intestacy of E. M. Matthews, the defendant, D. M. Matthews, became his administrator. The intestate left six infant children who with the husbands of such as have married, are plaintiffs in the action, and a widow, Elizabeth, who by proper proceedings in the late county court in April, 1867, caused her dower to be assigned and laid off in 102 acres of the said land. John Joyce died leaving a will in which the defendant Rea Joyce is appointed executor and he on December 13th, 1866, instituted in the court of equity of Rockingham, the proceeding which the plaintiffs in the present action impeach and ask to have reviewed and reversed, against the said Dalton, Smith, David Matthews (administrator of E. M. Matthews,) and a part of his children and heirs at law, setting the facts in reference to the making of the deed in trust and the sale of the land under it, and praying for a resale for the satisfaction of the secured indebtedness due to the testator. The children and heirs of the intestate upon some of whom, not named in the bill, no process was served, being infants, the court appointed the clerk and master guardian ad litem to all, and he accepting service for those omitted filed an answer in their behalf disclaiming knowledge of the truth of the allegations of the bill, and insisting on proof thereof, and placing their interests and rights under the protection of the court. The administrator made default and a decree pro confesso was entered as to him.

The remaining defendants, William Dalton, and Walker R. Smith, answer jointly, admitting and explaining in detail many of the matters charged in the bill; and among others the defendant Dalton saying that he had substituted his own note (that claimed to be due the testator,) in the place of the one secured to which he was a surety, and had never paid the same in full, and that upon information believed to be correct, the intestate had discharged out of his own means the entire indebtedness provided for in the deed and that the full equitable estate in the land was revested in him and at his death descended to his heirs at law.

An order of reference was thereupon made by consent to John H. Dillard and Thomas Settle whose award when reported was to be acted on as of that term. The award was made, among other things declaring the debt of $612.25 due the testator unpaid and secured in the deed, and the land liable therefor, subject to the dower estate attaching to part, and directing a sale and application of the proceeds to the payment of the note; and being confirmed it was decreed accordingly. At the sale the land was bought for the sum of $400 by the said Rea Joyce, who in 1859, entered upon and has been since in continuous possession of the same outside of the limits of the part assigned for dower, claiming and using it as his own.

The right to relief against the interlocutory and final decrees in the suit in equity is maintained by the plaintiffs upon several grounds specified in their complaint.

1. The decrees rendered are not within the scope and equity of the bill, in that, the bill seeks to pursue and subject the equitable estate in fee as residing in Dalton to the payment of his substituted bond, while the decree recognizes the right of the widow of Matthews to dower therein, as if such estate was vested in her husband.

2. The substituted note of Dalton in discharge of that to which he was a surety (and his receiving payment from his principal of that taken up) is a fulfillment of the trust declared for the surety and a complete indemnity to him.

3. The infants not served with process were not within the jurisdiction of the court, and no legal authority was possessed to appoint a guardian ad litem for them so as to bind them by the subsequent action of the court.

4. The payment of the secured debts by the intestate constitutes new matter discovered since the arrival at full age of the plaintiffs, of whom all but two have attained their majority.

To the complaint the defendant, Rea Joyce, for himself and in his representative capacity demurs and specifies as causes therefor the following:

1. That the subject matter of this action and the suit in equity is one and the same and the preceding adjudication is conclusive and a bar.

2. The decree was upon an award and in entire consistency with its terms, and the award not being impeached for fraud or otherwise, and being within the scope of the reference, is final both as to itself and the pursuant judgment.

3. The relief is in harmony with and warranted by the facts alleged in the bill.

4. The giving the single and individual bond of Dalton and taking up that to which he was a surety, did not extinguish the indebtedness represented in both, nor withdraw the security provided in the deed for the protection of the surety whose exoneration could be reached only by payment to the creditor.

5. The alleged new matter is not set up in the answers as a defence, which alleges only the discharge by the intestate of the debts secured other than that included in the award and decree.

6. There has been no leave obtained of the court to bring this action.

7. The averments in the complaint are indefinite and fail to show what the proposed evidence is, nor how and by whom to be proved, and it cannot be seen that, if true, the decree ought to be set aside.

At spring term, 1878, leave was granted the plaintiffs to amend, and thereupon they filed an amended complaint, reiterating what was alleged in the former, and further charging on information and belief that the intestate, Matthews, did, after the sale by Smith and the exchange of notes with Dalton, out of his own means pay all the secured debts inclusive of that transferred to and held by him, which information has come to some of the plaintiffs since attaining their majority, while it was fully known to the said David M. Matthews, the administrator, and he, as they allege, fraudulently concealed the fact from the referees and the court, and by his silence led both “into the erroneous and unjust determination...