Reynolds v. Magness' Ex'rs

• Decision Date: 31 December 1841
• Citation: 24 N.C. 26,2 Ired. 26
• Court: North Carolina Supreme Court
• Parties: JOHN REYNOLDS v. BENJAMIN MAGNESS' EXECUTORS.

2 Ired. 26

24 N.C. 26

JOHN REYNOLDS

v.BENJAMIN MAGNESS' EXECUTORS.

Supreme Court of North Carolina.

December Term, 1841.

In the case of an indemnity for becoming bail, the cause of action does not accrue until the bail is compelled to pay the money, and does actually pay it.

The entry of satisfaction of a judgment on the record is evidence to a Jury, from which they may infer that the judgment has been paid; but per se, it only imports a release of the judgment, and it may be shown by extrinsic evidence that the judgment was not in fact paid.

The rule, that, where parties have reduced their contract to writing, parol evidence shall not be introduced to alter or contradict the written instrument, applies only to controversies between the parties themselves, and those claiming under them. Between one of the parties and a stranger, the rule does not apply.

Before a suit is brought on a contract of indemnity, notice of the loss should be given to the party indemnifying.

Where the Judge below has misdirected the Jury, yet the verdict has been such as it ought to have been, had there been no misdirection, this Court will not grant a new trial. It will only do so, where the misdirection has misled the Jury into a wrong verdict.

The cases of Brisendine v Martin, 1 Ired. 286. Grice v Ricks, 3 Dev. 62, and Sherrod v Woodard, 4 Dev. 360, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Rutherford County, at Spring Term, 1841, his Honor Judge BATTLE presiding. The following case was reported by the Judge below: This was an action on the case brought by the plaintiff to recover of the defendants the amount, which he paid as the bail of one Samuel Magness, under a promise of the defendant's testator, that, if the plaintiff would become such bail, he would save him harmless. Pleas, the general issue and the statute of limitations. The plaintiff, after producing a writ against Samuel Magness, in favor of the administrator of one William Magness, issued in April, 1826, and a bail bond given thereupon by the said Samuel, with the plaintiff and two others as his sureties, introduced a witness, who proved that, at the time when the suit was brought against Samuel Magness, he resided in South Carolina, but was then on a visit to Rutherford county; that, upon being taken by the Sheriff, the defendant's testator, who was one of the administrators of William Magness, and a brother of Samuel, requested the present plaintiff to become his bail, saying to him, that if he would do so, “he would be his back bail, and he should not suffer.” The plaintiff then showed a judgment obtained in the suit at July Term, 1828, of the County Court, a c a. sa. against the said Samuel Magness, returned “not to be found,” and sci. fa. against the bail, upon which judgment was obtained at January Term, 1831, and execution issued thereon returnable to the Term next ensuing. The plaintiff then proved that one of his co-bail had left the State in 1827, and the other was insolvent; and, for the purpose of showing that he had paid the moneys, he produced a bill of sale for certain negroes, and a deed for a tract of land, executed to the surviving administrator of William Magness, on the 7th of March, 1831, which the parties said was to pay up an execution, for which the present plaintiff was bound as bail for Samuel Magness, and the plaintiff said it was to enable him to recover the amount back from his principal, Samuel Magness. The writ, in the present suit, was issued in the year 1835. And, for the purpose of avoiding the effect of the Statute of Limitations, the plaintiff offered to prove that the said bill of sale and deed though absolute in terms, were intended by the parties only, as a mortgage or security for the debt, and that in truth the execution against the bail of Samuel Magness was not paid off until the years 1833 and 1834, when two of the negroes mentioned in the said bill of sale, were taken into possession by the plaintiff in that suit, the property, purporting to have been conveyed both by the bill of sale and deed, having remained in the possession of the grantor until that time. This evidence was objected to by the defendants, upon the ground that the plaintiff was estopped from showing that his conveyances were not absolute, as they purported to be. But the Court received the testimony, reserving the question of its admissibility. A witness then proved that he took the said bill of sale and deed from the present plaintiff for the plaintiff in the suit against Samuel Magness, being the agent of the said last mentioned plaintiff; that he intended that the conveyance should be absolute, so as to convey a firm and indefeasible title to the property therein mentioned, but that he only intended to hold it as a lien on the property, and agreed at the time that the present plaintiff should retain the possession of the said property, until he could send out and try to recover the money from his principal, and, if he succeeded in getting the money, he was to keep the property altogether. This witness also proved that the property conveyed was worth much more than the debt intended to be secured, that no money was paid him by the present plaintiff at that time, but that, at his request, he endorsed satisfaction on the execution. An execution returnable in 1831 was then produced, with a return of satisfaction by the plaintiff's receipt. Another witness, a son of the plaintiff in the suit against Samuel Magness, then proved, that his father, not receiving the money from the present plaintiff, took possession of one of the negroes, mentioned in the bill of sale, in the fall of 1833, and of another in 1834, claiming them under the bill of sale aforesaid; that his father took the said slaves as his own property, having some time before that settled up the estate of his intestate, and that he set up no claim to another slave mentioned in the bill of sale, or to the land conveyed by the deed, though he had not reconveyed them to the plaintiff. The defendant's counsel objected, 1st, that there was a satisfaction of the execution against the present plaintiff, as bail, in 1831; and that his right of action then accrued and was barred by the operation of the Statute of Limitations; 2d, that notice of the payment of the money as bail by the present plaintiff...