Tillman v. Walkup
| Decision Date | 27 February 1876 |
| Citation | 7 S.C. 60 |
| Parties | TILLMAN v. WALKUP. |
| Court | South Carolina Supreme Court |
Where to an action on a sealed note, brought by the assignee thereof, the answer alleges that the assignment was collusive and pretensive, but sets up no defense which would have been valid had the action been brought by the payee: Held , That evidence to sustain the allegation that the assignment was collusive and pretensive was properly rejected by the Court below.
A Court of the State of North Carolina has no jurisdiction to remove an executor holding his office under the will of a testator who was domiciled in South Carolina at the time of his death and whose letters testamentary were issued by a Court of Probate of the State last named.
To an action on a sealed note given to a South Carolina executor an answer alleging that the note was given in North Carolina for rent of land lying in that State, that the payee had been removed from the executorship by a Court in North Carolina and an administrator with the will annexed appointed in his place, and that the note had been paid to the administrator states no valid defense to the action.
BEFORE MACKEY, J., AT LANCASTER, FEBRUARY TERM, 1875.
Action by J. W. Tillman, plaintiff, against W. W. Walkup, defendant, on a sealed note for $130, dated January 29th, 1870, given by the defendant to B. J. Cureton, and assigned by him on February 21st, 1870, to the plaintiff.
The answer alleged that the note was given by the defendant and Samuel Givens, as sureties of one M. Rone, to B. J. Cureton as executor of the last will and testament of W. J. Cureton, deceased, for rent of land situate in the State of North Carolina, belonging to the estate of the testator; that defendant resides in the State last named, and that there was no proper and valid assignment of the note, and if it was transferred, as alleged by the plaintiff, the transfer was pretensive and collusive as between plaintiff and the executor; and for a further defense, that, under proceedings had in the Court of Common Pleas of Union County, in the State of North Carolina, B. J. Cureton was removed from his office as executor of W. J. Cureton, deceased, and John N. Davis appointed administrator with the will annexed of the estate of the testator in said last named State, with sole power to manage the estate and collect all debts due by parties therein; that all the obligors in the note were residents of North Carolina, and that they had paid the note to Davis, the administrator.
At the trial the plaintiff proved the assignment and closed. The defendant then offered evidence to sustain the allegations of the answer, but His Honor held that the only issue in the case was as to the execution of the assignment that the answer disclosed no other defense to the action, and on that ground he excluded the evidence, and the defendant excepted to his ruling.
The jury found for the plaintiff the amount due on the note, and the defendant appealed.
Allison, Wylie , for appellant.
Moore , contra.
If the defense set up could have availed, had the action on the note been brought by B. J. Cureton, the payee, any collusion in its transfer between him and the respondent could not have prejudiced the appellant, and the testimony proposed to that end was properly rejected. The points submitted will, therefore, be considered as if the complaint had been in the name of Cureton, the payee. The appointment of Davis by the Court in North Carolina as administrator with the will annexed of W. J. Cureton, and the removal of B. J. Cureton, the executor under the will, to whom letters testamentary had been granted by a competent jurisdiction in this State, within which the testator was domiciled...
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