Opinion
(June Term, 1840.)
If a vendor receive in payment for the sale of land the bond of a third person made payable to himself, which is afterwards altered by his assent so as to destroy it at law, he cannot have relief in equity against the obligor, although he was ignorant of the legal effect of altering the bond. Nor can he, or his assignee who purchased the bond with full knowledge of the legal objections to it, have any relief in equity against the vendee who gave it in payment, though the latter made the alteration in the bond, and represented it to be good.
THIS bill was filed at the September Term, 1838, of GUILFORD Superior Court. The plaintiffs were Robert Ryan and Samuel Sullivan, and the defendants Robert Parsons, James Parsons and Jonathan Parker, and the case made by the bill was as follows: In 1827 the defendant Parker purchased a tract of land from the plaintiff Sullivan at and for the price of $600; and it was agreed between the parties that Sullivan should receive in payment of part of the purchase money a note, to be executed by the defendant Robert, with the defendant James as his surety, for the sum of $95, payable to the said Sullivan two years after date, which note the said Parker expected to obtain from the said Robert, who was his debtor. On or about 4 October, 1827, the said Robert and James executed their sealed note, at the request of said Parker, for the sum aforesaid, payable two years after date, but payable to Samuel Soliman or order. This note was offered by the said Parker to Sullivan, but the latter, who was illiterate and unable to read, on hearing the note read, refused to receive it because of this mistake; when the said Parker, alleging that it was a mere clerical error and that he could take the liberty to correct it, caused the name Soliman to be altered into Sullivan, and thereupon, the plaintiff Sullivan, confiding in the assurances of Parker than the note was not injured by the alteration, received it from him in payment for the land. After this note or bond became due it was presented by Sullivan to the makers, who refused to pay it, and on 29 August, 1831, he, for a valuable consideration, assigned it to the plaintiff Ryan. Robert Parsons became insolvent and left the State, and Ryan brought an action on the bond against (90) James Parsons, who pleaded the general issue and succeeded on that plea, because of the alteration of the instrument without his consent. When this action was brought or decided did not appear. The bill prayed that, there being no remedy at law, the court, would decree that the defendant pay the said note and the interest thereon, and for such other relief as the nature of the case required.
Mendenhall for the plaintiffs.
J. T. Morehead for the defendants.
The bill, under an order for publication, had been taken pro confesso and set for hearing against the nonresident defendant, Robert Parsons.
The defendant James Parsons, by his answer, justified himself for relying on his legal defense against the note attempted to be set up because, as he alleged, of culpable negligence in Sullivan and Ryan in not attempting to procure payment from the principal, Robert Parsons, while he was solvent; and insisted that on the matters shown the note which he executed had been destroyed, and that there was no claim thereof against him in law or equity.
The defendant Parker, by his answer, declared that the note in question was received by him as and for a note payable to Sullivan, and as such was delivered over by him to the plaintiff Sullivan without alteration and without any suspicion on his part that there was any error in it; and alleged that afterwards, and without any agency on the part of the defendant, though in his presence, the alteration was made by direction of the plaintiff Sullivan. The defendant further insisted that if the plaintiff had, or either of them had, any claim against him, there was a plain remedy at law therefore, and also insisted upon the protection against this demand afforded by the lapse of time since the same arose.
Upon the proofs the case, as stated in the bill, is fully established. But upon the case so established we find ourselves unable to make any decree for the plaintiffs.
It is clear that there is no ground on which relief can be had against either Robert or James Parsons. (91) Supposing the claimant to be Sullivan and not Ryan, there never was any contract between him and these defendants except such as was testified by the bond; and as that has been altered without their consent, and with the privity of Sullivan, the same is destroyed in law. It being thus destroyed, and it being Sullivan's only ground of claim against them, he is, as to them, without remedy.
It is not quite so clear that there ought not to be relief against the other defendant, Jonathan Parker. Having, though perhaps unintentionally, deceived an illiterate man as to the character of a worthless paper taken from him, and upon the faith of his representation as of value, there seems to be a plain obligation of conscience upon him to make indemnity for the injury thereby sustained. But upon the rules which govern the administration of judicial equity we find ourselves precluded from helping the plaintiffs.
This is substantially the bill of Ryan, and in form Sullivan should have been made a defendant thereto. Now, if it be admitted that Sullivan had an equity to be relieved against Parker, either because of the unpaid part of the price of his land — supposed to have been paid, but in truth not paid, by reason of the worthlessness of the note received on account thereof — or because of the representations or assurances upon which he induced Sullivan to receive this worthless note as one good in law and valuable in fact, how has this equity been transferred to Ryan? He claims as purchaser of a bond which he took with full notice of the legal objections thereto. Under the purchase he is entitled to no more than the bond and all the remedies, legal and equitable, belonging to the ownership of it. Upon that bond Parker was in no way liable. But if this could be regarded as Sullivan's bill then, without expressing an opinion whether having taken the bond with a full knowledge of all the facts attending its alteration, he can be heard in any court to allege that he was ignorant of the legal consequences of such alteration, it is manifest that if he can there is no ground for his coming into equity. His demand, if to be sustained at all, is a plain legal demand against Parker to recover the unpaid price of his land or damages for the deceit put (92) upon him. Either of these actions would have been long since barred at law; and as early as the year 1829, when payment was demanded of the altered note and was refused because of the alteration, Sullivan knew all that he knows now. No equity has since arisen by the discovery of a theretofore concealed fraud, and he must not be allowed to evade the legal bar, arising from lapse of time, by a mere change of forum.
The bill must be dismissed, but the case is not one in which the defendants can be allowed costs.
PER CURIAM. Bill dismissed.
(93)