Towe v. Newbold
| Decision Date | 31 December 1858 |
| Citation | 57 N.C. 212,4 Jones 212 |
| Court | North Carolina Supreme Court |
| Parties | JAMES TOWE and others v. JAMES NEWBOLD and another. |
Where a surety has paid money, he is entitled to an assignment of all the securities that the creditor held, and to substitution, and in that case, the creditor need not be a party; but where he has not paid the debt, he may have relief, but the creditor must then be a party.
Where it appeared that a party took, without endorsement, from a guardian, notes, payable to him as such, by paying the money in full, which was done at the request of the makers, to avoid being sued thereon, it was Held that the circumstances repelled the idea of fraud, and that there was no ground to seek for exoneration, by following the notes.
CAUSE removed from the Court of Equity of Perquimons co.
Four notes, of $300 each, with an amount of interest thereon, drawn by William T. Sumner and J. M. Sumner, and payable to Willis H. Bagley, guardian, to Anderson Woodly, were, at two several dates, delivered to the defendant, James Newbold, by the said Bagley; and the plaintiffs, who were the sureties on Bagley's guardian bond, seek to be substituted to the rights of the ward, alleging that these transfers were with notice of the character of these instruments, and that the same were fraudulent, and with the full knowledge that Bagley was raising the money on them for his own private purposes, in anticipation of insolvency. The bill alleges, that Bagley became insolvent after using his ward's money, and that the plaintiffs, as his sureties, were liable for large sums of money on account of this guardianship.
The answer of Newbold denies the fraud alleged, and says that, as to two of the notes, William T. Sumner called on him in the year 1853, and desired him to pay to Bagley the amount of them, take them up, and to permit him and his brother to make a note to him for the amount; he said he had been notified by Bagley to pay the same, and was afraid he would be sued on them, if they were not paid; that he agreed to do so, but not being prepared to complete the arrangement, it was delayed for some time; that in the mean time, seeing the surety to the notes, Mr. J. M. Sumner, he told him what his brother had proposed, and he acquiesced in the plan, and professed his willingness to go into the new note; that shortly thereafter, meeting with Bagley, he told him what had been proposed by the Sumners, and he, Bagley, shortly after sent the notes to him, by his son, with authority to receive the money, and hand him over the notes; that he did pay the full amount, called for in the papers, with the interest that had accrued; that he being the guardian of a child of a Mr. Harrell, took from the Sumners new notes for the amount paid for them, payable to him, as guardian, and delivered the former notes to the makers; and he had no other view than to invest his ward's money; that as to the other two notes, he says, at February term, 1850, of Perquimons County Court, he was appointed guardian to the heirs of James Harrell, and the administrator passed to him a claim, which was in the hands of Bagley for collection; that the latter told him he had collected the...
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