Newsom v. Newsom
| Decision Date | 31 December 1847 |
| Citation | 40 N.C. 122,5 Ired.Eq. 122 |
| Court | North Carolina Supreme Court |
| Parties | LARRY NEWSOM v. CHARITY NEWSOM et al. |
Where a guardian bona fide transfers to another, for a full consideration, a debt due to his wards, the assignee is entitled to the same remedy in Equity to recover the debt, which the wards would have had.
The Court expresses its disapprobation of bringing forward in the pleadings irrelevant matters, and interlarding bills and answers with unavailing epithets, and with matters that have no bearing whatever on the controversy.
Cause removed from the Court of Equity of Wayne County, at the Spring Term, 1847, by consent of parties.
John Newsom was the guardian of his three infant children, Charity, Penelope, and Sarah, and died intestate and indebted to his wards, leaving them surviving, and also eight other infant children--all of whom were his heirs at law. At the time of his death, he was seised in fee of a tract of land in the pleadings described; which descended to all his children. Administration of his personal estate was committed to Theophilus T. Sims; and against him a suit was brought by petition by the three children, Charity, Penelope and Sarah, by their guardian, William Barnes, to recover their portions, which were in the hands of their father, as their former guardian. The sum of $1,945 94, was found to be due to them, and so declared by the Court; but it was also found that there were no personal assets in the hands of the administrator, and, therefore, no decree was given against him therefor. A scire facias was thereupon sued out by the plaintiff against the other children and themselves, to subject the real estate descended from their father, and judgment was thereon entered for the debt and costs; and Barnes, the new guardian, assigned the debt to the present plaintiff, Larry Newsom.
The intestate, John Newsom, died indebted also to James Sims, and to James Phillips, and they respectively brought suits, and ascertained their debts, but had the plea of fully administered found against them; and then irregularly took judgments against the heirs at law.
On those three judgments writs of fieri facias issued against the lands descended, and a tract of land was exposed to sale by the sheriff, and purchased by Larry Newsom at the price of $3,157 50, that being the amount due on the three executions for debt, damages, and costs; and therewith the creditors, Sims and Phillips, were satisfied, and the present plaintiff retained the residue in satisfaction of his own demand, as assignee of the debt to the said Charity, Penelope and Sarah. Afterwards, all those judgments and executions were set aside, as irregular and void; as may be seen in respect to one of them in the case of Newsom v. Newsom, 4 Ire. 381; and then the plaintiff, who had gone into possession of the land, surrendered it to the heirs again, and commenced this suit against Theophilus T. Sims, the administrator, Barnes, the guardian, and against all the children and heirs of the intestate, John Newsom.
The bill states, that the several debts recovered against the administrator were just, and that in fact he had no personal assets but had fully administered the estate; and therefore, that the lands descended were chargeable with the debts. The bill also states, that the plaintiff was not aware of any irregularity in the proceedings at law, at the time he made his purchase and paid the money, with which Sims and Phillips were satisfied; and that he is advised, that he ought to be substituted in this Court to their rights against the land. And it also states that the assignment to him by Barnes was in consideration of the full amount due on the judgment in favor of his wards, which the plaintiff paid therefor.
The prayer is, that the plaintiff may be declared to be entitled to the sum due on the judgment assigned to him by Barnes, and also to the two sums, which he paid in satisfaction of the judgment recovered by Sims and Phillips against the administrator; and that, if not paid within a reasonable...
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Daniel v. Gardner
...are considered irrelevant; whereas, excessive fullness of detail or the repetition of facts are treated as being redundant. Newsom v. Newsom, 40 N.C. 122; Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551; McIntosh, North Carolina Practice and Procedure, p. 378. 2. On motion to stri......
- Weeks v. Weeks
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Ellis v. Ellis
...should not be interlarded with "unavailing epithets, and with matters, that have no bearing whatever on the controversy." Newsom v. Newsom, 40 N. C. 122. The authorities bearing upon the subject may be found in Mcintosh on North Carolina Practice and Procedure, p. 378, § 371. We are of the ......