Outlaw v. Farmer

• Decision Date: 30 June 1874
• Citation: 71 N.C. 31
• Court: North Carolina Supreme Court
• Parties: LEWIS OUTLAW and wife v. JOHN FARMER and others.

71 N.C. 31

LEWIS OUTLAW and wife

v.JOHN FARMER and others.

Supreme Court of North Carolina.

June Term, 1874.

Where the next of kin of an intestate, whose estate was not indebted, appointed A and B their agents to settle the estate and make distribution; and as such, A and B sold the personals, taking bond payable to ““A or B, agents;” and afterwards C was duly appointed administrator of the same estate, who settled with A and B, taking the said bond and transfering it to one of the next of kin, as her distributive share.

Held first, that the conjunction “ or” in said bond should be construed to mean and; and second, that A and B were not executors de son tort, and the bond was valid, which the defendants, the obligors would have to pay to the assignee of the administrator.

( Parker v. Carrow, 64 N. C. Rep. 563; State v. Purdee, 67 N. C. Rep. 326; Turner v. Childs, 1 Dev. 25; Love v. Love, 3 Ired. Eq. 104; Filhour v. Gibson, 4 Ired, Eq. 455, cited and approved.)

CIVIL ACTION, commencing in a Justice's Court, for the recovery of a bond, and carried by appeal to the Superior Court of WAYNE County, where it was tried before Buxton, J., at the January (Special) Term, 1874, upon the following case agreed:

The complaint of the plaintiffs was on a sealed instrument, purporting to be a bond, and of the following tenor:

“Six months after date, we or either of us promise to pay to John Lewis or James Parker, agents, by agreement with the heirs of Anna Herring, deceased, the sum of one hundred and twenty-five dollars and fifty cents, as witness our hands and seals. January 10th, 1866.

+---------------------------------+
                ¦(Signed)¦JOHN FARMER,    ¦[SEAL.]¦
                +--------+----------------+-------¦
                ¦        ¦And two others.”¦       ¦
                +---------------------------------+
                

The defendants insisted that a recovery could not be had, because the bond was payable to John Lewis “ or” James Parker. Objection overruled, and defendants excepted.

Defendants then offered to prove that the said bond was given for the purchase of certain personal estate belonging to one Anna Herring, deceased; that said personal estate was purchased by the defendant, Farmer, and the other two defendants became his sureties to said bond. That said Anna Herring died on the 24th day of December, 1865, intestate, leaving two sisters of full age, and other next of kin; some of the latter being under twenty-one years of age. That said two grown sisters, one of whom is the plaintiff, Catherine, (wife of Outlaw,) desired that the estate of Anna Herring should be settled without administration, and, to that end, requested the said Lewis and Parker to sell the said personal estate of the said Anna and distribute the proceeds among the next of kin, and the said Lewis and Parker, in pursuance of said request, did sell said personal estate on the day the said bond bears date, taking for the property sold the bond in question.

That afterwards, to wit: on the 20th day of February, 1866, one Rhodes became the administrator of said intestate; that Lewis and Parker afterwards settled with Rhodes, and that he, Rhodes, assented to the delivery by Lewis and Parker of the bond herein sued upon, to the plaintiff, Catherine, as her distributive share of the said estate; and that she, Catherine, took the bond with full notice of all the foregoing facts.

The defendants insisted, upon this statement of facts:

1. That the bond was void as to all the defendants;

2. That it was void as to the sureties, Grady and Smith.

His Honor was of opinion that the subsequent assent of Rhodes ratified the transaction, and rejected the evidence; and instructed the jury to render a verdict for the plaintiffs, and gave judgment accordingly. From which judgment defendants appealed.

Faircloth & Granger, for appellants .

Smith & Strong, contra .

BYNUM, J.

1. The first exception of the defendant is, that his Honor refused to hold that the bond, payable “to John Lewis or James Parker,” was void.

The bond shows upon its face that the payees were joint agents. In such case this Court has recently decided that the word “ or” will be construed “““ and.” Parker v. Carrow, 64 N. C. Rep., 563. It is not necessary to enquire whether this would be a good bond without this construction.

2. The second exception is, that his Honor rejected the evidence offered by the defendants.

We incline to the opinion that the evidence offered was admissible, upon the defence that the bond was void as against public policy or a prohibiting statute. But if admitted, would the evidence answer the action or benefit the defendants? State v. Purdee, 67 N. C. Rep., 326. We think not. The rejected evidence established the following facts: That one Anna Herring died intestace and owing no debts. That her next of kin and distributees, met together and appointed Lewis and Parker their agents to sell the personal property of the intestate and distribute the proceeds among them. That these agents, in pursuance of this arrangement, did sell personal property to the defendant, Farmer, and took his bond for the purchase money, payable to them, as set forth, with the other defendants as sureties. That after the sale one Rhodes administered upon the estate of Anna Herring, and made a settlement with Parker and Lewis, ratifying what they had done, received the bond in question and transferred it to the female plaintiff, who was one of the distributees, in payment of her share of the estate. Do these facts, in law, avoid the bond?

It may be conceded,...