Opinion
(December Term, 1845.)
1. Where a plaintiff in a petition claims to be an assignee by a written instrument, whether he is so or not is a question of law for the court, not of fact to be submitted to a jury.
2. Where a paper under which a plaintiff in a petition claims to be an assignee does not on its face purport to be an assignment, but only an order for money, it is necessary that the alleged assignor or his personal representative should be a party to the petition, either plaintiff or defendant.
3. On a petition against administrators for a distributive share of an estate all persons entitled to distribution should be made parties.
APPEAL from HENDERSON Fall Term, 1845; Bailey, J.
No counsel for either party.
The petition sets forth that Jane M. Townsend died intestate in the year ......, leaving a considerable personal estate; that administration was granted to the defendants, who took into their hands all the personal property; that James M. Townsend was one of the children of Jane M., and that he, for a valuable consideration, assigned to the petitioner all his interest as one of her next of kin; that more than two years (51) had elapsed after the qualification of the defendants, and that the petitioner had demanded of the defendants a settlement of the estate and a payment to him of the distributive share due to James M. Townsend, who is dead. He prays that the defendants may be decreed to account with and pay over to him what is due as such assignee of James M. Townsend, and prays process against the said defendants.
The defendants file a joint answer, admitting the death of Jane M. Townsend, and that they have been duly appointed her administrators, and have taken into their hands her personal property to the amount set forth in their inventories. They deny that the petitioner is the assignee of James M. Townsend, who is admitted to be one of the next of kin of Jane and entitled to a distributive share, and claim in their answer that the other children of Mrs. Townsend should be made parties. The assignment to Clark, under which he claims the distributive share of James M. Townsend, as set forth in his petition, is as follows: "Mr. Marvell M. Edney and R. R. Townsend: Please to settle with and pay over to William Clark all the amount in your hands belonging to me, and this shall be your receipt for the same." This paper was presented to the defendants by a person sent by the petitioner, and they refused to take it up or to recognize it as addressed to them in their representative characters, or as authorizing them to pay over to the petitioner the distributive share of James M. Townsend. At the time of filing this petition James M. Townsend was dead. The petition was filed in the court of pleas and quarter sessions of Henderson County, and, upon the coming in of the answer, was dismissed. Upon appeal to the Superior Court, replication having been taken, issues were made up to be tried between the parties. At the Fall Term, 1845, issues were made up and tried. The issues were, Was William Clark the proper assignee of James M. Townsend? (2) Has the petitioner called on the defendants, as administrators, to pay his claim? These issues were tried by the jury and found for the plaintiff, whereupon the court decreed that the defendants should pay the plaintiff the sum of $33.14, and the defendants appealed. (52)
Many orders and decrees are made in the hurry of business on the circuits which will not bear a strict scrutiny and which the Judge himself would not make if he had time for the least reflection. This case furnishes an instance. The presiding judge submits to the jury the question whether the petitioner was the assignee of James M. Townsend's distributive share. This was a question of law to be decided by him. After the jury had responded to the issues submitted to them, without any reference to the master to ascertain the situation of the assets and the amount due for the distributive share of James M. Townsend, the court decrees that the defendants should pay the plaintiff a certain sum. We think this was erroneous. But the proceedings are in themselves defective. At the filing of the petition James M. Townsend was dead. His representative is not made a party, nor are the other children of Mrs. Townsend, nor is any reason given why they are not. The petitioner claims to be the assignee of James M. Townsend. The paper which he alleges contains the assignment does not purport to be an express assignment of the drawer's distributive share; there are no words of conveyance in it; it is not addressed to the defendants in their representative character; it is but an order for the payment of what money of his might be in their hands. It is true, an order by one of the next of kin upon the administrator, such as the one in this case, may, under the circumstances, be held to be an equitable assignment of his distributive share. But when it is, as here, not upon its face an assignment, the person claiming under it, in order to recover, (53) must make the alleged assignor a party in order to ascertain its character. Polk v. Gallant, 22 N.C. 395; Thompson v. McDonald, ibid., 463. But it was equally necessary to make the other children of Mrs. Townsend parties. It is ever the aim of a court of equity to do complete justice by deciding upon and settling the rights of all parties interested in the subject of the suit in order to prevent future litigation and to make the performance of the orders of the court perfectly safe to those who are compelled to obey them. Calvert on Parties, in Eq., 3. All persons, therefore, who are interested in the question, or concerned in the demand, ought to be made parties. Ibid., p. 10. The other distributees of Mrs. Townsend are directly interested in the question and concerned in the demand. The fund sought to be divided is a joint one, in which all the next of kin have an interest. The other children ought to have been parties, and no reason is assigned why they are not. Hobbs v. Craige, 23 N.C. 339; Hewson v. McKenzie, 16 N.C. 463; Calvert on Parties, in Eq., 3, 10. This objection can as well be taken on the hearing as by plea. The case is before us for final hearing upon an appeal, and we must decide it as it is.
PER CURIAM. Reversed, and petition dismissed.
(54)