Pegram v. Armstrong

• Decision Date: 31 January 1880
• Parties: M. P. PEGRAM and others v. JOHN M. ARMSTRONG, Ad'mr.
• Court: North Carolina Supreme Court

82 N.C. 326

M. P. PEGRAM and others

v.JOHN M. ARMSTRONG, Ad'mr.

Supreme Court of North Carolina.

January Term, 1880.

APPEAL from an Order made at Fall Term, 1879, of GASTON Superior Court, by Buxton, J.

The executors of Larkin Stowe qualified in 1857, and as such, sold the property and got in all the assets and paid off, it is alleged, all the debts of their testator, except a large debt to one Wilson now owned by the plaintiff, Pegram, and one other in favor of defendant Armstrong as administrator of J. N. Ford, on a guardian bond on which Larkin Stowe was a surety.

Both of these debts were reduced to judgment against the executors of Larkin Stowe at the same term of the court, and they filed their petition in the probate court for a license to sell the land for assets, and pending the proceedings they were removed from office, and the defendant Armstrong became administrator de bonis non with the will annexed. Said Armstrong as administrator of Stowe, connected himself with the special proceeding to sell the land, and procured a decree of sale, and at the sale one Craig became the purchaser for Pegram and gave his bonds with one Gulick as surety for the purchase money, and against them a summary judgment was entered by a motion in the cause.

The said Craig and Gulick being about to be pushed by execution to pay the judgment entered against them, Pegram tendered to the defendant as administrator of J. N. Ford, not the whole amount of the purchase money, but only the ratable part on a division of the fund between his judgment and said judgment assigned to him by Wilson, claiming to be entitled to retain the balance in part of the Wilson judgment, but the defendant refused to accept the sum tendered. Thereupon this suit was brought to have an account of defendant's administration of the assets of Larkin Stowe, and in the meantime to enjoin the collection of the judgment for the purchase money, on the allegation that he, Pegram, was entitled to at least his proportional part thereof on his judgment, and that defendant had refused a ratable division of the fund and had threatened to appropriate by right of retainer the whole proceeds of the land sale to the debt due to him in his character of administrator of Ford.

A temporary restraint was ordered, and defendant answered, alleging that there was another liability against the estate. He denied any threat to appropriate the money to his debt as administrator of Ford, and averred his purpose to administer according to law, accompanied with an allegation of the solvency and sufficiency of himself and sureties to secure every creditor against his devastavit or maladministration.

At fall term, 1879, the court overruled the motion to dismiss on the ground of a want of jurisdiction, and it appearing that the main point in controversy between the parties was as to the priority of their respective judgments in the assets of Stowe's estate, an order was entered dissolving the restraining order previously obtained unless all the purchase money and interest, commissions and cost of suit were paid into court within ten days, and if so paid, then continuing the injunction to the hearing, and directing the clerk to take and report an account of the debts and assets of the estate. From the refusal of the judge to dismiss the action, and the interlocutory order of conditional dissolution of the injunction, and for an account of the debts and assets of the estate, the appeal is taken by defendant.

Messrs. W P. Bynum and A. Burwell, for plaintiffs .

Messrs. Wilson & Son, for defendant .

DILLARD, J., after stating the case.

The appeal presents the points, that the superior court had not jurisdiction of the action, and if it had, then it was error in the court to continue the injunction conditionally, and make an order of account of the assets and debts against the estate. The superior court had jurisdiction of the action. By articlefour, section twelve of the amended constitution, the legislature was empowered to redistribute and apportion jurisdiction, not belonging to the supreme court, among all the other courts then existing or thereafter created as they should deem best. Under this authority the legislature, by the act of 1876-'77, ch. 241, enacted that in addition to the remedy by special proceedings, actions against executors, administrators, collectors and guardians might be brought originally in the superior court at term, with competent power in the court to order accounts, adjudge the application of the assets, and to grant any relief the nature of the case might require.

The legal effect of this legislation, as settled by construction of this court, was to give the superior courts the same jurisdiction over actions like the plaintiffs' as before that time was vested in the probate courts. Haywood v. Haywood, 79 N. C., 42, and Bratton v....