Opinion
(September Term, 1796.)
A note was given by the plaintiff to Watkins for lands, which, it turned out, Watkins never had. Watkins cannot recover on the note, and as the note (being for the delivery of specific articles) was unnegotiable, Pickett is subject to the same objection.
THE bill stated that Watkins pretended to be possessed of lands on the Cumberland River, of good quality, and enticed the complainant to purchase 1,000 acres, for which the complainant gave a note to deliver a good wagon and team by such a day, Watkins at the same time giving his bond to make a title. Afterwards, Watkins was applied to for the title, but did not make it, and in fact was found to possess no land, and confessed he had not any there; but before this he had endorsed the note to Pickett. Watkins failed to answer, and the bill was taken pro confesso as to him. Pickett answered, and insisted he had purchased the note for a valuable consideration. The bill further set forth that Pickett, in the name of Watkins, had obtained judgment upon the note for __________ pounds, and had received £ 180 and had afterwards taken out execution for the full amount of the judgment.
The bill states, and it is not denied, that the note was given for lands sold, to which the vendor cannot make a title. He cannot, therefore, in equity, demand payment of the money, and is not entitled to a recovery of it. In the next place, this note is not negotiable, and, therefore, Pickett stands in the same place as Watkins himself did with respect to the note, and all equitable defenses that might have been set up against it. It is immaterial to Welch whether he gave a valuable consideration for it or not to Watkins. Wherefore let the injunction be made perpetual.
Had the prayer of this bill extended far enough, we would have made Pickett refund the money he has received.
See Jordan v. Black, 38 N.C. 30.
Cited: King v. Lindsay, 38 N.C. 81.