Moore v. Alexander

• Decision Date: 16 March 1887
• Citation: 96 N.C. 34,1 S.E. 536
• Court: North Carolina Supreme Court
• Parties: MOORE, Guardian, v. ALEXANDER and others.

96 N.C. 34

1 S.E. 536

MOORE, Guardian,

v.ALEXANDER and others.

Supreme Court of North Carolina.

March 16, 1887.

Appeal from superior court, Washington county.

W. D. Pruden, for plaintiff.

W. B. Rodman, Jr., for defendant.

SMITH, C. J.

Under proceedings instituted by the solicitor in the superior court of Washington upon the bond executed by the defendants S. M. Alexander, guardian of one Ephraim Mann, and Jesse Norman, the surety thereon, the estate and effects held in trust were delivered to the clerk of said court, who was appointed a receiver for that purpose. Among the assets was a note executed by Mary Spruill to said Alexander, as guardian, on January 3, 1869, for $1,515, transferred to the receiver at its face value. This debt had been secured to the said Alexander by a mortgage of lands lying in Tyrrell county made to him. The mortgagee, acting under a power conferred at the instance of the present plaintiff, advertised the lands for sale with a view of foreclosure, when both were restrained by an injunction issued from the superior court of Tyrrell in an action which had been begun by the said Mary Spruill, and in which the alleged credits were omitted, and to which she was entitled, largely reducing the demand. In that suit, and upon issues found by the jury, that the note was the individual property of the said Alexander, and constituted no part of trust-estate, and that the debtor was entitled to sundry credits, which followed the transfer of the note, some as against the said Alexander, and others for moneys paid to the receiver, it was adjudged, with these disclosures, that the balance due on the note was $254.83, whereof $202.45 is principal money, bearing interest from the first day of the term, to-wit, the twelfth Monday after the second Monday in January, 1876. The present action was begun on the guardian's bond against the parties who executed the same, and, the surety having died, W. A. Littlefield, his executor, has come in and been made a party defendant in place of the testator. The object is the recovery of the moneys which have been allowed in reduction of the indebtedness of the said Mary Spruill.

The only issue submitted to the jury was in these terms: “Are the defendants indebted to the plaintiff as alleged in the complaint, and, if so, in what amount? To which the response is: $673.28, with interest from April 8, 1877, till paid.

The only exception necessary to be noticed is to the refusal of the court to permit the executor defendant to prove by said Alexander that the note secured by mortgage and paid over was not subject to any credit;...