Opinion
(December Term, 1848.)
After a bill has been depending for some time, testimony taken and the cause set for hearing and transferred to this Court, a petition will not be granted to a defendant to have the cause remanded, so as to bring before the court grounds of defense not properly or sufficiently set forth in the answer, and to take additional testimony; especially when the object is to introduce matter which is the subject of a cross-bill, and to get rid of the plaintiff's claim, not upon the merits, but upon the matter which is in a great degree technical.
CAUSE removed from the Court of Equity of HALIFAX, at Fall Term, 1848.
B. F. Moore and Whitaker for plaintiff.
W. H. Haywood for defendant.
The plaintiff complains that Robert H. Wilson, a citizen of the then territory of Florida, died in the year _____, having previously made and published his will, which was duly proved, and the executor therein appointed having refused to qualify, administration, with the will annexed, was granted to his widow, then Mrs. Wilson, now the defendant Mrs. Hogan. At the time of his death, the plaintiff alleges Robert Wilson was largely indebted to him, and the administratrix having sold a large quantity of the property of the deceased, he came to a settlement with her, and received from her, in part payment of his debt, two bonds, each for $5,032.32, executed by John D. Edwards, one payable 1 January, 1840, and the other 1 January, 1841, bearing interest at the rate of 8 per cent per annum from 15 April, 1838. These bonds were given to John D. Edwards for purchases made by him at the sale of Robert Wilson's property; he, the said Edwards, and the administratrix, both of them being at the time citizens of Florida and resident there. These bonds, it is alleged by the plaintiff, were transferred to him by (341) indorsement by the administratrix. The plaintiff charges that at the time of the settlement and transfer of the bonds to him he delivered to the administratrix bonds, notes, and open accounts, due him by the testator, to an equal amount, with proper receipts indorsed on them, as the bonds were received by him in discharge of so much of the debt due to him. These bonds, he states, were by him placed in the hands of Mr. Mosely, a practicing attorney of Florida, with directions to put them in suit, which was immediately done, in the name of the administratrix, and in the same suit was included another bond, executed by the said John D. Edwards, and payable to her as such administratrix. The plaintiff charges that judgment was obtained on all the bonds, and the marshal of the district, having raised the money, or nearly all, by sale of the property of John D. Edwards under an execution, on demand of the defendant Christopher Hogan, who had married the administratrix of Robert H. Wilson, paid the whole amount to him, after deducting the costs, he (Hogan) well knowing that a large portion of the money thus received by him was the property of the plaintiff. The bill charges a demand of Hogan and a refusal to pay over to the plaintiff the money received by him, and which belonged to the complainant, and prays a decree against the defendants for the money so received.
The defendants admit the death of Robert H. Wilson, and that administration upon his estate was committed by the proper authorities to Harriet Wilson, the widow, and their intermarriage. The defendant Harriet alleges that by the advice of the plaintiff she obtained an order of the proper authorities in Florida to sell the whole of the estate, real and personal, of her late husband, and it was sold by the plaintiff, as her agent, to John D. Edwards for $62,000, for a portion of which sum he executed his notes, or bonds, each for $5,032.32, except one, which was for $4,837.35, and to secure the payment of what was (342) due by Edwards, he executed a mortgage for the slaves sold to him, about fifty in number, which mortgage, through the negligence of the plaintiff, was not registered for nearly a year thereafter, and not until Edwards had mortgaged the slaves to the Union Bank of Florida to secure a debt he owed it, and which was immediately registered. She denies that her former husband, to her knowledge and belief, owed the plaintiff anything. That while very feeble from a recent confinement, the plaintiff called upon her in company with McBride, and, producing two papers, requested her to sign them, which she did, though entirely ignorant of their contents, and she supposes they are the bonds or notes now claimed by the plaintiff. That when she did sign them, she was unable from weakness to get out of her bed, or to raise herself up, but was raised up and supported by pillows, and that no papers of any kind were delivered to her by the plaintiff, at that or any other time, as evidences of any debt due to him by Robert H. Wilson.
The defendant Hogan answers that after his marriage with the other defendant, he went to Florida to attend to her business, and upon getting there he was advised to institute a suit against the Union Bank to recover the slaves, and which is still pending. He learned that Edwards had confessed a judgment to his wife upon three of the sale bonds, one of which was for the sum of $4,837.32, and each of the others for $5,032.32, and that the attorney who recovered the judgment had collected under it and paid to the plaintiff $2,000. He was advised that the whole of the judgment belonged to his wife. He, therefore, caused an execution to issue, and had it levied on twenty-three slaves, all of which he purchased at the sale, but three; one of them, by the name of Levy, was purchased by John Doggett, the nephew and agent of the plaintiff. The whole of the sales, including some small (343) articles other than the slaves, amounted to $8,732. After the sale a controversy arose between him and the agent, John Doggett, the latter claiming the proceeds of the sale for the plaintiff, and he, the defendant, claiming them as his, in right of his wife, when they came to an arrangement, which was reduced to writing, and by which it was agreed that the plaintiff should retain the $2,000 and the $150, the price of Levy, and the sum of $12 raised by the sale of wagon wheels, and that he should surrender to him a negro man by the name of Jacob he had purchased at the sale at the price of $700 — the whole amounting to $2,862, and he (Hogan) was to retain the other slaves at the sums he bid them off at, amounting to $8,070. By the agreement the right was retained by the plaintiff to assert his right to the slaves in contest with the bank, if they were recovered, and to the defendant to resist his claim.
The answer of Hogan further alleges that if, as the plaintiff charges, the bonds were transferred to him, his debt was paid, and if the defendant afterwards received it, he was answerable singly and not jointly with his wife, and if so, the plaintiff had full and adequate relief, and the agreement as before set for the as a compromise, on the consideration set forth, is a full and complete bar to the relief sought; and, independent of its being a compromise, the fact that the defendant took the slaves with the consent of the plaintiff, given by his agent, is also a full and complete bar to the bill; of all and each of which matters the defendants claim the same benefit as if specially pleaded.
Replication was taken to the answers, and the cause transferred to the Supreme Court.
To enable the plaintiff to obtain the relief he seeks, he must show that Robert Wilson was indebted to him to the amount claimed by him. (2) That the two bonds for $5,032.32 each were transferred to him by the administratrix, Mrs. Wilson. (3) That the amount of these bonds, or so much as was realized from them on the sale of Edwards' property, was received by the defendants.
That Dr. Wilson was indebted to the plaintiff is sufficiently proved by the evidence. By a deed of trust executed by him to the plaintiff, and bearing date 25 August, 1835, he states "that Robert H. Wilson is justly indebted to Henry Doggett in the sum of $12,000 or thereabouts," and to secure that debt, together with one to a man by the name of Preston for $4,000 or thereabouts, he executed the deed of trust conveying a number of slaves. The deposition of Peter Morgan proves that he was present at a settlement of accounts between the plaintiff and R. H. Wilson in 1836, for which he gave his notes or bonds. In addition is the inventory returned to the probate court of the county of Gadsden in the State of Florida. In it is the following return: "Notes in favor of H. Doggett against the estate of R. W. Wilson" — a total amount $15,878.94. This inventory was returned by Judge McBride, who is proved to have been the agent of the administratrix to make it, and to transact other business of the estate, and in whose house she lived for a length of time after the death of her husband. From the testimony of Morgan it appears that the plaintiff and R. H. Wilson were, at the time he spoke of, engaged in mining in the county of Rutherford in this State. Dr. Wilson died in 1837. The above testimony satisfactorily proves the indebtedness of the estate of Dr. Wilson to the plaintiff to a very large amount.
The second inquiry is as to the transfer of the two notes or bonds by the administratrix to the plaintiff.
Mrs. Hogan in her answer states that at the request of the (345) plaintiff she did sign her name upon two papers; she did not know what their contents were, but she supposes they were the bonds or notes in question. This was done in the presence of Mr. McBride, who, it is shown, was her agent in managing the business concerning her accounts, and has since died. Upon inspecting the bonds, which are identified and are in evidence before us, we find that the indorsement is in her representative capacity; she signs her name as administratrix, with the will annexed. The handwriting was admitted by the defendant Christopher Hogan to be that of his wife, Mrs. Hogan, when the bonds or notes were examined by him in Florida. This is proved by the testimony of Mr. Mosely. Mrs. Hogan did then indorse the notes, and, we have little doubt, knew for what purpose it was done.
The remaining inquiry is as to the reception by the defendant of the proceeds of the two bonds or notes.
Mr. Mosely informs us that the plaintiff delivered to him a number of notes or bonds executed by John D. Edwards and payable at different periods to Mrs. Wilson. That two of them, each for $5,032.32, were indorsed in the name of Mrs. Harriet Wilson. These two and another for $4,837.35 were put in suit by him in the name of Mrs. Wilson. He was asked whether, at the time the plaintiff delivered them, he informed him that the two largest bonds or notes which were indorsed belonged to him, and why he sued on them in the name of Mrs. Wilson. His answer is, the plaintiff did not so inform him; but we understood from him, at the time, that the estate of Dr. Wilson was largely indebted to him; and he brought the suit in the name of the administratrix because he considered the plaintiff as her agent, to whom he would have to pay the money when collected, and they could settle their own matters. He further states, and the exhibits before us prove it, that judgment was obtained on those three bonds or notes, and the execution (346) was levied on twenty-three negroes, as the property of the defendant Edwards, and at the sale the defendant Hogan purchased all but three, at the price of $8,770. The whole amount of the sale of the slaves, including some wagon wheels, which sold for $12, was $8,932, John Doggett, the nephew of the plaintiff, and who professed to be acting for him, having purchased one of the slaves named Levy for $150. That after the sale a dispute arose between the defendant Hogan and John Doggett, the latter claiming for the plaintiff the whole amount of the sales, and the former claiming the whole for himself in right of his wife. By his advice the parties came to an agreement; the defendant retained all the negroes purchased by him, except one by the name of Jacob, bid off by him at the price of $700, and which he let John Doggett have for his uncle, the plaintiff, and who also returned the boy Levy and the value of the small articles. So that John Doggett received of the proceeds of the sales the sum of $862, and the defendant Hogan $8,770. This being so, as admitted in the answer, the defendant Hogan has received money, collected on the sale of the negroes under the judgment, which belonged to the plaintiff, and for which he is bound to account, for the judgment, though in his wife's name, was in reality for the benefit of the plaintiff jointly with her.
The defendants in their answers allege that the agreement made by John Doggett and themselves, being made by an agent of the plaintiff, amounted to a compromise, and the plaintiff is bound by it. Mr. Mosely is asked, on his examination, whether John Doggett did not say he was the agent of the plaintiff. His answer is, "I do not know he was the agent of the plaintiff, but he held himself out as such, and I treated with him as in that character"; and on his cross-examination he states that he never saw any written authority from the plaintiff to John Doggett (347) to act as his agent. John Doggett swears he never was the plaintiff's agent to interfere in the matter of the sales, nor to make any compromise or agreement, and that when the plaintiff was told of it, he expressed great surprise and anger, and declared he would not abide by it. We do not consider the compromise, set forth in the answer, binding upon the plaintiff — it having been made by a person not authorized to act as his agent.
The defendants further insist that if the notes were indorsed to the "plaintiff, as he alleges, it was a full and complete discharge of the debt due from the estate of R. H. Wilson," and if the defendant Christopher Hogan afterwards received the money due on them, "it was an act for which he alone, and not jointly with his wife, was responsible to the plaintiff, and, therefore, his bill cannot be supported," and for the further reason that the plaintiff had, by his own showing, full and adequate relief at law. Mrs. Hogan is a proper and necessary party to the bill, if for no other purpose but to procure from the Court a declaration that the judgment now rendered in Florida, in her name, is in part in trust for the plaintiff.
After the cause had been heard in this Court, a petition was filed by the defendants, praying that the case might be remanded to the court of equity of Halifax County, to enable them to amend their answer, so as to bring before the Court grounds of defense not properly or sufficiently stated therein, and to take additional testimony. If we understand rightly the object which the defendants have in view, it is twofold: one to introduce matter which is the proper subject of a cross-bill, and the other to escape from the responsibility they have incurred, by getting rid of the plaintiff's bill, not upon the merits, but upon a matter which is in a great measure technical.
We do not feel disposed to deprive the plaintiff of an advantage which he had acquired, upon either ground, more particularly as we think the petition comes too late.
The plaintiff is entitled to a decree, and there must be a (348) reference to the master to ascertain what portion of the money raised by the marshal's sale was due and coming to the plaintiff. And in taking the account he will charge the plaintiff not only with the value of negroes Levy and Jacob, at the price at which they were bought at the sale, and with the $12 which the small articles brought, but also with the $2,000 paid him by Mr. Mosely.
PER CURIAM. Decree accordingly.
Dist.: Graham v. Skinner, 57 N.C. 99.