Miller v. Cherry
| Decision Date | 31 December 1856 |
| Citation | 56 N.C. 24,3 Jones 24 |
| Court | North Carolina Supreme Court |
| Parties | FREDERICK C. MILLER v. J. B. CHERRY and others. |
1. Where there is a provision in a deed of trust, that certain debts, naming them, are to be paid, and a further provision, that the debts shall be paid as they fall due, and some of the enumerated debts are due at the time of making the deed of trust, these latter are to be paid.
2. Where a surety assents to a deed of trust, which gives him a preference over other sureties as to a large part of his liabilities, and is insisting on this preference against other sureties, he shall not be permitted to diminish the fund, which, in part, consisted of a debt due by himself to the maker of the deed, by setting it off with other liabilities to him, not secured by the deed.
3. Where, a debt was truly described in a deed of trust, in every essential particular, except by its date, it will be permitted to come in, and will be considered as running to maturity from its true date, and not from the mistaken date set out in the deed of trust.
4. Where there are contradictory descriptions given of a thing, that description will be adopted, which, in its nature, is least liable to error.
CAUSE removed from the Court of Equity of Bertie county.
Willie G. Clary and B. J. Spruill, for several years before the year 1854, carried on the business of merchandise in the town of Windsor, under the name of Clary and Spruill. In that year, (1854) Clary died, and the business devolved on Spruill as surviving partner. On the 10th of February, 1855, finding the affairs of the partnership hopelessly insolvent, the latter, as surviving partner, executed a deed in trust to the plaintiff, Miller, and to Joseph B. Cherry and Samuel B. Spruill. They all accepted the trust, but shortly afterwards, Cherry and S. B. Spruill made a power of attorney, whereby the sole execution of the trust was committed to the plaintiff. The deed in trust conveyed large lots of staves, lying at different wharves and landings, and all the debts due to the late firm of Clary and Spruill, whether due by note, bond or account, with power and authority to ship the staves, and to collect the debts in the name of the surviving partner. The deed provides for the payment of a large number of debts which are specified. After this enumeration, it contains these words: “All which debts, shall be paid in the order in which they become due.” Some of the debts, amounting to about $5100, were already due. Some fell due in a few days after the execution of the deed in trust, (10th of February, 1855,) and the remainder between that time and the 11th of April.
The fund realised under the deed of trust, only amounted to about $20,000, and would, if applied to the debts that were due, and to the others as they successively fell due, be exhausted by debts due and falling due before or on, the 10th of March. These first debts were chiefly those on which S. B. Spruill was the endorser. The defendant Joseph B. Cherry was on paper which fell due after the 10th of March, and the questions made in his behalf were: 1st, Whether, as executed, it was not the meaning of the instrument, that all the enumerated debts were to be paid pro rata. 2nd. Whether if this were not so, the debts already due, could be taken into the list of debts to be paid, as in strictness, only the debts to fall due in the future, seemed to be entitled to a priority.
Samuel B. Spruill was indebted to Clary and Spruill for a store account, and, besides the several debts, secured by the deed of trust, he was liable for them on other debts not reached by it. He insists that he has a right to have this deducted from his liabilities for them, without regard to the trust, and that it ought not to go in as a part of the fund.
There was a draft described in the deed of trust, as being drawn by Benjamin J. Spruill, surviving partner, on Cherry, Cahill & Co. of Norfolk, Va., for thirty-one hundred dollars, endorsed by William P. Gurley, and dated the seventeenth day of December, 1854, and having ninety days to run. There was a draft corresponding with this description, in every thing, except its date, which was the seventh of December, and it was insisted by Gurley that this was the draft intended to be described, and that the variance was a mistake. If this draft was allowed to come in as being sufficiently described, another question was, whether it would have to run from the 7th or 17th. If from the former, it would fall due on the 7th of March, and would be reached by the funds fealised under the deed in trust; if from the latter date, it would become due on the 17th March, and would not be secured at all.
The firm of Cherry, Cahill & Co., was also insolvent.
The bill was filed by the plaintiff, Miller, calling on the parties assuming these various positions, to interplead and have their conflicting claims settled by a decree of this Court, and prayed the Court to instruct him in the discharge of his duties in the premises.
Benjamin J. Spruill, Samuel B. Spruill, Joseph B. Cherry, Solomon Cherry, James Cahill, were made parties, and severally answered, insisting upon their claims as above stated. Replication to the answers.
The cause was set for hearing on the bill, answers, exhibits and former orders, and sent to this Court to be heard.
Winston, Jr., for plaintiff .
B. F. Moore and Smith, for defendants .
1st. The deed of trust directs the payment of certain debts therein set out, and particularly described by stating the amount of each, to whom due, how due, when due, and the date thereof, and concludes with these words--“all which debts shall be paid in the order in which they become due.”
The fund turns out not to be sufficient to pay all these debts, and the order of payment prescribed, works an inequality to the prejudice of the defendant Cherry, who is liable, as surety, upon some of the debts which are the last to fall due. He insists that the debts shall be paid pro rata, under the maxim that “equality is equity.”
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