Ransom v. McClees

• Decision Date: 31 January 1870
• Citation: 64 N.C. 17
• Court: North Carolina Supreme Court
• Parties: E. RANSOM v. W. & N. MCCLEES, and others.

64 N.C. 17

E. RANSOM

v.W. & N. MCCLEES, and others.

Supreme Court of North Carolina.

January Term, 1870.

A creditor of one deceased, by note, (there being no other debt of equal or higher dignity) became purchaser at a sale by the administratrix, and gave bond on that account (in an amount less than that of his claim), and this bond constituted the whole assets of the estate; after the bond became due, the administratrix, who, with her sureties, was then insolvent, assigned it by endorsement, for value, to one who was, to a small amount, creditor of the estate by account. Held, that the creditor by note was entitled to bring in his debt, by a counterclaim, against an action upon his bond, whether by the administratrix or her assignee.

Arguendo: It seems that, under the present Code, his right would be the same, even if the administratrix had not been insolvent.

Under the present Code, if a demurrer by the defendant be overruled, judgment is to be given as if no defence had been made (§§ 217 and 243), unless the defendant obtain leave to plead over (§ 131).

If a party answer and also demur to the same cause of action, the answer overrules the demurrer; but pleadings in which a party answers to some and demurs to others of the allegations made in support of any one cause of action, are erroneous: Section 96 of the Code applies only where a complaint or answer contains several causes of action or grounds of defence.

A parol agreement by an administrator, that if a certain creditor will pay costs, &c., the former will allow his claim as a set-off against a debt due to the administrator upon a purchase of the assets after the death of the deceased, is void under the Statute of Frauds.

A verdict “that one note shall off-set the other,” where the defendant's note is the larger, is a verdict for the defendant.

A Judge is not bound to take for granted (at the suggestion of counsel, based upon the form of the verdict) that the jury did not understand his instructions, and therefore to repeat them.

ACTION for money, and Counterclaim by defendant, tried before Jones, J., at Fall Term 1869, of TYRRELL Court.

The plaintiff, as assignee, held a note executed by the defendants. This action is upon such note. The defendants, W. and N. McClees, held a note on one William T. Dillin, as endorser, which note, with interest, exceeded the amount of the note sued on. Dillin died intestate in 1865, and his widow, Mary Dillin, another defendant, is his administratrix. After exhausting the personal estate, the administratrix obtained an order to sell the interest of her intestate in a tract of land. At the sale, the defendants, W. & N. McClees, became the purchasers, and executed the note sued on, for the price, with the other defendant as surety. The note held by the defendants is the only debt of the intestate having priority over debts by open account. The plaintiff was a creditor on open account for $90, and took the assignment of the administratrix, for valuable consideration, some time after the note was due. The administratrix and her sureties are insolvent. The defendants made their note the subject of a Counterclaim; and to various parts of this, the plaintiff either answered or demurred.

The plaintiff excepted to the following passages in the charge of the Judge, viz:

1. “That the claim set up by the defendant, was not a set-off at law, but that if the Administratrix, after the maturity of the note sued upon, agreed with the defendants that the two bonds should be discharged, each by the other, then, in equity, the defendant's right attached and followed the bond sued upon, into the hands of any subsequent holder.”

2. “That if the plaintiff's claim upon the estate, was an account, and he knew (1) that the bond now sued upon was all of the assets of the estate, (2) that the bond due to the defendants was in existence, and (3) that the administratrix and her sureties were insolvent; and thereupon bought of the administratrix the bond now sued upon in payment of his account, he became privy to the misapplication of assets made by the administratrix, and the transfer of the bond was void as to the defendants.”

He also excepted because that, after the jury came in and rendered a verdict, “That one bond should off-set the other,” the Judge declined to repeat his instructions to them, although the plaintiff's counsel had suggested that the form of their verdict showed that they had mistaken their province--which was, the facts, and not the law, of the case, and had no clear idea of what they were to find; and that the Judge had told the jury, thereupon, that they must find for the plaintiff or for the defendant.

Verdict and judgment for the defendant, and appeal by the plaintiff.

Collins, for the appellant .

W. A. Moore, contra .

PEARSON, C. J. (After stating the facts as above,)

Relieving the case from the many useless allegations with which it is encumbered, and the intricacies of pleading, and “obscurity and confusion” caused by argumentative pleading, and by an attempt to follow the “new mode of procedure,” with which neither the Judges nor the members of the bar have as yet become familiar, and putting it solely on its merits, it amounts to what is stated above.

The question is, ought the note of the intestate to be allowed as an equitable set-off, or counterclaim, so as to satisfy the note sued on? Under the ruling of his Honor, the jury found for the defendant.

The note was assigned to the plaintiff after maturity, so he is fixed with notice, and took it subject to any set-off or other draw-back the defendants were entitled to as against the assignor. In other words, he stands in the shoes of Mary Dillin. The note in the hands of Mary Dillin, was assets, and ought, in the due course of administration, to have...