Walker v. Crowder

• Decision Date: 30 June 1843
• Citation: 37 N.C. 478,2 Ired.Eq. 478
• Parties: RICHARD H. WALKER et al. v. ROBERT A CROWDER et al.
• Court: North Carolina Supreme Court

2 Ired.Eq. 478

37 N.C. 478

RICHARD H. WALKER et al.

v.ROBERT A CROWDER et al.

Supreme Court of North Carolina.

June Term, 1843.

A father, who had been appointed guardian to his children and given sureties as guardian, and who had received moneys belonging to his children and had become insolvent, made a deed of trust in April 1838, conveying all his property to trustees for the payment of debts, in which, after preferring certain specified creditors, and reciting “that whereas the said R. A. B. (the father,) may be, and doubtless is now indebted to other individuals or companies in divers small amounts, or in amounts, which are not now recollected, or the persons to whom they are due,” provides among other things, stating how the creditors are to be preferred, as follows: “Thirdly, the debts on which the said R. A. C. or F. & C. have given a surety or indorser; fourthly, all other debts now owing by the said R. A C. in equal proportion, if there be not a sufficiency to pay the whole;” Held that the children, or the sureties of their father as substitutes where they had paid the debts due the children, had a right to come in for a proportionable share of the property or surplus so secured by the deed of trust.

Held further, that when the grand-father of these children, by will dated in March 1839, had directed certain property to be sold and the proceeds applied to the payment of the debts so due by the father to the children, and the balance to be given to the children themselves; that the children, or the sureties who had paid them, ought first to resort to this fund left by the grand-father, before they applied for satisfaction out of the funds placed by their father in the hands of hls trustees.

Held further, that the sureties of the guardian, who had paid the children, were entitled to be substituted to the rights and remedies of the children so paid.

The father, or his trustee, in the settlement of the guardian accounts, has no right to charge the children with the amount expended for their education, the father being of sufficient ability to maintain and educate them.

It was the duty of the father, if of ability, to maintain his children; and if not, he should have had the sanction of the proper court to an application of the children's property to that purpose.

The Court will never make a decree, when one of the patties sues by a next friend and that next friend has, or may have, an interest in the suit, opposed to that of the infant. It will require another next friend to be appointed to attend to the cause in behalf of the infant.

There are some modern English cases, in which it has been held, that the maker of a deed of trust for the payment of debts may, under certain circumstances, revoke the purposes declared in the deed and direct other dispositions of the property; but this doctrine has not yet been recognized in this State.

This cause having been set for hearing upon the several bills, answers, proofs and exhibits, was, by consent of parties, transmitted to this Court from the Court of Equity of Caswell County, at Spring Term, 1843.

The following facts appear from the pleadings and proofs to constitute the case:

In 1822, Henry Crowder, Mary Crowder, Giles Crowder, and John Crowder, the four infant children of Robert A. Crowder, then of Mecklenburg county in Virginia, became entitled to a sum of money under the will of an uncle, and in order to its collection, their father was duly appointed by the County Court of Mecklenburg their guardian, and, as such, entered into bond in the sum of $20,000 with Thomas B. Puryear and another person, who is since dead, as his sureties, and then received the legacy belonging to his children. Afterwards, Robert A Crowder removed to Caswell county in this State, and brought his children with him.--Becoming much embarrassed by debts, to a greater amount, as it afterwards appeared, than all his property would discharge, he on the 3d of April 1838, executed a deed of trust for all his estate to Nathaniel J. Palmer, and Edward H. Robertson, of Caswell, upon trust to sell, and out of the proceeds thereof, to pay his debts in the order therein named. The deed enumerates a great number of debts for certain sums due by judgment, bond, note or account to different persons who are named, among whom the said Robertson, one of the trustees, is mentioned as a creditor and also as a surety for Crowder for several of the debts to other persons. The deed proceeds as follows: “And whereas the said Robert A. Crowder may be, and doubtless is, now indebted to other individuals or companies in divers small amounts, or in amounts which are not now recollected, or the persons to whom they are due. If so, whether they are due by bonds, bills, notes, accounts, judgments or otherwise, they are hereby intended and are to be as fully secured and paid out of the property herein conveyed or its proceeds, as if they were specially named in this deed: My trustees however being satisfied that they are bona fide due and were contracted before or at the time of the execution hereof, and then they are fully authorized to pay the same, as the other debts particularly named. Now, in consideration of an honest desire of the said Robert A. Crowder to secure and pay all the debts before mentioned, or, if not mentioned, which may be by him now justly owing or contracted, and in the further consideration, &c.” The deed then directs the order of payment as follows: First and secondly, judgments then rendered or that might be rendered during Caswell County Court, then sitting, and the expenses of executing the trusts. “Thirdly, the debts on which the said Robert A. Crowder, or Farly and Crowder have given a surety or endorser.--Fourthly, all other debts now owing by the said Robert A. Crowder, in equal proportion, if there be not a sufficiency to pay the whole.” Mary Crowder, one of the children, intermarried with Lewis Webb and died, and her husband administered on her estate, and, in 1838, Webb, as administrator of his deceased wife, and Henry Crowder, another of the children, who had then come of age, instituted in Virginia against Thomas B. Puryear an action of debt on the guardian bond, in the name of the justices to whom it was payable for their benefit as relators, and therein recovered in October 1839, against Puryear, one of the sureties, the sum of $1840 94. On the 26th March, 1839, Godfrey Crowder, who was the father of Robert A. Crowder, and resided in Mecklenburg, made his will, which was proved in January 1840, after the testator's death, and therein directed the remainder of his estate to be sold, and his executor John Nelson to apply a certain share thereof “to the payment of the legacies, which accrued to Henry, Giles, Mary, and John Crowder, children of Robert A. Crowder, from the estate of their deceased uncle, Henry Moody, and which is in the hands of Robert A. Crowder, as their guardian, so far as shall be necessary to discharge said legacies with the accruing interest, and the balance, if any, I give to be equally divided between the said Henry, Giles, Mary, and John Crowder, children of my son Robert A. by his first wife.” The original bill in this case was then, May 1840, filed at the instance of Lewis Webb, and Henry Crowder, against Palmer and Robertson and Robert A. Crowder, setting forth the foregoing facts, except the will of Godfrey Crowder, and his death, and that they were unwilling to raise their judgment out of the property of Puryear, the surety, if they could have satisfaction thereof out of the estate of Crowder, the guardian himself, and they prayed an account of the trust fund created by the deed and to be let in for a due proportion thereof, as being entitled thereto under the provision in the deed for all debts contracted by Robert A. Crowder before the date of the deed and not therein named, and as being entitled in that class of debts, for which the debtor had given sureties.

The trustees and Crowder answered. They state, that the principal object of the deed was to secure the debts due to the defendant Robertson and others, for which he and others were sureties in Caswell, and to prevent the sacrifice of the property by forced sales on executions, which would soon be obtained, and that the general clause was intended to embrace only such small debts as might have escaped the debtor's memory, and not those from him to his children, for they were large and not forgotten, but were remembered, and were expected by him to be provided for by his father, Godfrey Crowder, by a donation in his will for that purpose of such property as his father had intended for him, Robert A. Crowder, before his embarrassments; and they insist that the provision made in the father's will, as before mentioned, for his four...