Paxton v. Wood

• Citation: 77 N.C. 11
• Parties: E. B. PAXTON, Executrix, and others v. C. M. WOOD and W. C. WOOD, Executors.
• Decision Date: 30 June 1877
• Court: United States State Supreme Court of North Carolina

77 N.C. 11

E. B. PAXTON, Executrix, and others

v.C. M. WOOD and W. C. WOOD, Executors.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION, tried at Fall Term, 1876, of CHOWAN Superior Court, before Eure, J.

Richard Paxton died in 1863, in said County, leaving a last will and testament to which the plaintiff, Mrs. E. B. Paxton, qualified as executrix. She is the widow of Richard Paxton and equally interested with her children, the other plaintiffs, as legatee under said will.

Among the articles of personal property left by her testator, were two joint bonds against the defendant W. C. Wood and his testator Edward Wood, amounting in July, 1876, to $6,841.49. Prior to that time, one of these bonds was credited with $1,000, paid by W. C. Wood; and Edward Wood at various times had paid to the plaintiff executrix the sum of $2,125, which was not credited on the bonds in question, but Mrs. Paxton gave her individual notes to said Edward for said sum. She stated however in a letter to W. C. Wood in July, 1867, that said sum was to be credited on said bonds.

The two bonds at that date (exclusive of $2,125 covered by her individual notes) amounted to the said sum of $6,841. 49. Mrs. Paxton proposed to W. C. Wood to compromise the matter, agreeing to lose $895.60, and to credit said bonds with the amount of her individual notes. This proposition was accepted, and Edward Wood paid to Mrs. Paxton the amount agreed on, and she surrendered to him the said bonds.

In a subsequent settlement between Edward and his brother W. C. said bonds were surrendered to W. C. and cancelled by him, he giving his note to Edward.

Mrs. Paxton was adjudicated a bankrupt in April, 1871, being before that time, then, and now, indebted to her children, the other legatees, several thousand dollars.

On the trial below the defendants relied on the plea of satisfaction, payment, release and the statute of limitations, and after argument, His Honor being of opinion with defendants, adjudged that they go without day and the plaintiffs appealed.

Messrs. A. M. Moore and Mullen & Moore, for plaintiffs .

Messrs. Gilliam & Pruden, for defendants .

PEARSON, C. J.

The case was heard upon the pleadings and the facts set out in the statement of the case, and we concur with His Honor in the opinion that the plaintiffs did not make out a cause of action.

1. Judgment is demanded on the ground that there is a balance due to the plaintiff, E. B. Paxton, as executrix of Richard Paxton, on the two bonds mentioned in the pleadings. It is clear that the several amounts advanced to Mrs. Paxton were intended as payments, and are to be so taken. It is not, however, so clear that the $895.60 which Mrs. Paxton says, in her letter, “she was willing to take by way of compromise,” should not be considered as a balance still due upon the bonds.

We have come to the conclusion that the executrix cannot maintain an action for the $895.60 as a balance due on the bonds, for the reason, that the bonds were surrendered by her to the obligors to be cancelled, and were cancelled; by which deed their existence was extinguished to all intents and purposes, such voluntary surrender and cancellation having a legal effect entirely different from an accidental loss or destruction of the instruments.

Suppose Mrs. Paxton had executed to the obligors a formal release, that is, “an instrument of writing, sealed and delivered,” of her cause of action on the bonds; there can be no question that the release could have been pleaded in bar of her action. The surrender and cancellation of the bonds have the same legal effect; both are deeds, the one in the restricted sense of “an instrument of writing, sealed and delivered,” the other in the general sense of “a solemn act done by the party”; and both are valid without a consideration, by reason of the solemnity of the act done. A deed of gift for a chattel passes the title; so, a gift accompanied by an actual delivery passes the title. No consideration is necessary in either instance, for both are “ deeds,” and no consideration is necessary to make them valid. A feoffment of land passes the title, although there be no consideration, for the act of “livery of seizin” is a deed, and although there be an instrument of writing sealed and delivered, setting out the limitations, conditions, &c., accompanying the livery of seizin, the title passes by the act of making livery, and no writing or consideration is necessary. In conveyances operating under the doctrine of uses, a consideration is necessary to raise the use. This, however, is exceptional; as is the necessity for a valuable consideration to make conveyances valid as against creditors under 13 Eliz., and purchasers under 27 Eliz; but voluntary conveyances and voluntary bonds and all deeds, are binding between the parties. It follows that the deed in fact, to-wit, the surrender of the bonds to the obligors and the cancellation thereof, has the same legal effect as a deed in writing, to-wit, a release of the canse of action on the bonds, would have had.

The doctrine that payment of a part of a debt does not support an agreement to forego the collection of the residue, has no application to this case. That rests on the necessity for a consideration to support an executory agreement; otherwise it is not valid, being nudum pactum. Whereas we have seen that agreements executed and evidenced by a deed in writing, or a deed in fact, are valid without any...