Moore v. Nowell

• Decision Date: 28 February 1886
• Citation: 94 N.C. 265
• Court: North Carolina Supreme Court
• Parties: VAN B. MOORE v. M. A. NOWELL et als.

94 N.C. 265

VAN B. MOORE

v.M. A. NOWELL et als.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION heard on demurrer, before Clark, Judge, at August Term, 1885, of the Superior Court of WAKE county.

The complaint was as follows:

The plaintiff above named, complaining of the defendants above named, alleges:

I. That on the 9th of June, A. D. 1879, one William K. Davis, as guardian of Mary A. Morehead, sued out and prosecuted against the defendants J. R. Taylor, John N. Bunting, Charles D. Upchurch and the intestate of the defendant Minerva A. Nowell, J. J. Nowell, he being then alive, in the court of a justice of the peace, acting in and for the county aforesaid, three several actions for the recovery of various sums of money, due by notes given for the rent of land, each note being for less than two hundred dollars, all of said actions being within the jurisdiction of a justice of the peace; whereupon, upon consideration of the said court, it was ordered and adjudged, that the said William K. Davis, plaintiff as aforesaid, should recover of the said John R. Taylor, John N. Bunting, Charles D. Upchurch and J. J. Nowell, as follows:

In the first of said actions, the sum of $79.32, with interest on $69.50 from the said 9th day of June, 1879, and his costs of action. In the second of said actions, the sum of $155.62, with interest on $135.00 from the said 9th day of June, 1879, and his costs of action. And in the third of said actions, the sum of $80.34, with interest on $67.50 from the said 9th day of June, 1879, and his costs of action. All of which said judgments, the said William K. Davis, caused to be forthwith, to-wit: on the said 9th day of June, 1879, docketed in the office of the Superior Court of the county aforesaid.

The plaintiff is informed and believes, and so charges, that no part of the said judgments or any of them, has ever been paid, but the same now remain in full force and effect, and constitute and are a lien in law upon all the real estate then, on the said 9th day of June, 1879, owned by the said judgment defendants, any and all of them, or by them since acquired.

II. That on the 9th day of February, 1885, for value received, the said William K. Davis assigned and transferred, in writing, each and all of the three said judgments, to the plaintiff Van B. Moore, who is now the owner thereof, and the real party in interest.

III. That after the rendition and docketing of said judgments, as hereinbefore set forth, to-wit: on the ...... day of ............, 1882, the said J. J. Nowell departed this life, leaving the defendant Minerva A. Nowell, his widow, and the defendants Nellie G., James, Willie, and Henry Nowell, and Arnetta Adams, (born Nowell), wife of the defendant Thomas Adams, his children and only heirs-at-law.

IV. That on the 18th day of September, 1882, the said Minerva A. Nowell was duly appointed and qualified as administratrix of the said J. J. Nowell, dec'd, and took upon herself the discharge of the duties of her said office.

V. That the said administratrix has not, since her said qualification, paid any part of said judgments or either of them, either to the said William K. Davis, as the plaintiff is informed and believes, or to the plaintiff, though she has been requested so to do.

VI. That at the time of the death of the said J. J. Nowell, he was seized and possessed, as of his own right, of the following real estate, as the plaintiff is informed and believes.

(Here the complaint sets out the various tracts of land.)

The plaintiff is advised and so insists, that the said judgments, and all of them, are, in law, a lien upon the real estate aforesaid, and entitled to payment out of the proceeds thereof when sold, before any other of the debts of the said decedent are paid, except such debts as may constitute prior liens thereon.

VII. The plaintiff has no knowledge as to the ages of the defendants, children and heirs-at-law of the decedent, the said J. J. Nowell, but he is informed that some, if not all, of the said children and heirs-at-law are infants under the age of twenty-one years. He therefore prays that their general guardian, Moses G. Todd, be ordered by the Court to represent the said infants in this action.

VIII. That Moses G. Todd is the duly appointed and qualified guardian of the said Nellie G., James, Willie and Henry Nowell.

Wherefore the plaintiff prays judgment:

I. That the defendant Minerva A. Nowell as administratrix as aforesaid, pay to the plaintiff the sum of three hundred and fifteen dollars and twenty-eight cents, with interest on two hundred and sixty-two dollars, from the said 9th day of June, 1879, together with the costs of said three actions, and the costs of this action to be taxed by the Clerk of the Court, or in case she have not now in her hands sufficient assets of the estate of her said intestate, wherewith to make such payment, that she forthwith proceed, according to law, to sell so much of said real estate as may be sufficient therefor.

II. That execution issue on the said three judgments against the said John R. Taylor, John N. Bunting and Charles D. Upchurch.

The defendant Upchurch demurred to the complaint on the following grounds:

1. That the judgments on which the plaintiff brings his action are not negotiable or assignable in law, so as to give the plaintiff a right of action at law in his own name thereon.

2. That the plaintiff is not a party to the judgments on which his action is brought, and was not a party to the action in which the said judgments were rendered by the justice of the peace, and has no legal right to sue on the said judgments in his own name.

3. That William K. Davis, the plaintiff, in whose favor the said judgments were granted, is not a party to this action.

4. That this Court has no jurisdiction of this action, for the reason that each of the several causes of action united in the complaint in this action, is for less than two hundred dollars, and is founded on a judgment of a justice of the peace, of which a justice of the peace has exclusive original jurisdiction.

5. That the plaintiff has improperly united several causes of action.

6. That the plaintiff does not, in his complaint, state each cause of action separately, but, in his complaint, compounds and states his several causes of action together.

7. That the plaintiff has united several causes of action in his complaint in which he demands different judgments against the several defendants to said action.

His Honor overruled the demurrer, and gave judgment final against the defendant Upchurch, from which he appealed.

Mr. John Gatling, for the plaintiff .

Mr. John Devereux, Jr., for the defendant .

MERRIMON, J.

Judgments whether they be granted by a justice of the peace, or a court of record, are assignable either in writing or by merely verbal transfer, so as to pass the equitable title to them to the purchaser. Winberry v. Koonce, 83 N. C., 351.

The judgments mentioned and described in the complaint, were assigned to the plaintiff in writing, for value, and he became the complete equitable owner of them and the “real party in interest.” The person in whose name they were taken, has only the naked legal title to them, and he holds that for the plaintiff.

It is insisted, however, that the statute, (The Code, §177,) provides that, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract,” and that the judgments are things in action not arising “out of contract.”

We cannot concur in this view. Judgments are, it is true, not ordinarily and always and for all purposes treated as contracts, as was decided, in McDonald v. Dickson, 87 N. C., 404; but in the sense of distinguishing them from causes of action...