Shaw v. Burney
| Decision Date | 31 December 1840 |
| Citation | 1 Ired.Eq. 148,36 N.C. 148 |
| Court | North Carolina Supreme Court |
| Parties | DANIEL SHAW, Guardian of PENELOPE GREEN, a lunatic v. JAMES BURNEY, JAMES LAWSON & WILIE THOMPSON. |
A suit in equity to recover what belongs to a lunatic, may be brought either in the name of the guardian or committee, or in the name of the lunatic by his guardian or committee.
Where A. delivered to B., but without endorsing it, a bond for six hundred dollars, upon the contract of B. to support her during her life, and educate her son, and A. remained but three months in B's family, when, from disagreement with B's wife, A. left the family, apparently with B's consent, and B. never afterwards contributed to the support of A., nor to the education of her son; held that B. could not, in conscience, claim to be a bona fide purchaser of the bond, for a valuable consideration; and he was therefore decreed to surrender the bond, or account for its value to the guardian of A., who had been subsequently declared a lunatic.
This was a bill filed in Bladen Court of Equity, in the name of Daniel Shaw, as guardian of Penelope Green, a lunatic, against the defendants, praying to have a certain bond delivered up to the plaintiff, or that the defendants may account to the plaintiff for the principal and interest. The defendants answered, depositions were taken, and, at the Fall Term, 1839, of Bladen Court of Equity, the cause was set for hearing, and ordered to be transmitted to the Supreme Court. Upon the pleadings and proofs, the following appeared to be the case:
James Burney, one of the defendants, executed a bond for six hundred dollars to Penelope Green, of whom the plaintiff is guardian. Wilie Thompson, her son in law, one of the defendants, agreed, with the approbation of her father and brother, to board and maintain her during life, and educate her infant son, for the said bond. She placed the bond in the possession of Thomsom, but did not endorse it. She moved to the house of Thompson in March, 1836. In June of the same year, she and her daughter, the wife of Thompson, disagreed; the daughter asserting that they could not live in the same house together; that she had told her husband so, before he brought her. Thompson offered to build her a house on his land, and supply her with all necessaries; but she declined, giving as a reason that there would be no peace with her daughter, as long as she was on the land, Mrs. Thompson having said frequently that she would leave her home, if Mrs. Green remained. Thompson then assisted her and her child back to her father's; but stated to her that he would come for her, whenever she was willing to return. In June, 1836, she wrote an order to Thompson for the bond above mentioned. He admitted he held it, but declined to send it to her. In August, 1836, she, by inquisition, was found to be a lunatic, and the plaintiff Shaw was appointed her guardian. Thompson was never at any expense or trouble with her, or her son, after she left his house. Thompson admitted to a witness that the high temper of his wife was the cause of the disturbance. In June, 1836, when the bond was due, and carrying interest, Thompson passed it without endorsement to the defendant, James Lawson.--There was no proof that any valuable consideration was paid for it by him. Lawson let Burney, the obligor, and one of the defendants, have the bond, and took from him two promissory notes to its amount. These notes are now held by Lawson, and remain unpaid, and Burney has destroyed the bond.
No counsel for the plaintiff.Strange for the defendants .
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Crump v. Morgan
...the guardian, though the former is, for some reasons, the preferable course. The cases of Johnson v Kincade, 2 Ired. Eq. 470, and Shaw v Burney, 1 Ired. Eq. 148, cited and approved. Cause transmitted by consent of parties to the Supreme Court from the Court of Equity of Motgomery county, at......
- Proctor v. Ferebee