Opinion
(December Term, 1859.)
Where a bond, payable to a testator, was, by an order of the court of equity, taken out of the hands of the executor and committed to a receiver for collection, it was Held not to be a ground for suing in a court of equity that the defendants were setting up acceptances made by them of bills drawn by the executor as payments to the executor by agreement with him, since the question can be fully tried in a court of law.
Cause removed from the Court of Equity of BRUNSWICK.
On 1 January, 1855, Thomas C. McIlhenny, with E. B. Dudley and Thomas Cowan as sureties, executed a bond in favor of S. B. Everett for $5,000, for value received, payable to the said Everett, with interest from date. Everett died in 1855, leaving a last will and testament, with Samuel Langdon executor of the same. Some time during 1858 Langdon was removed from the office of executor of the will of S. B. Everett, and the plaintiff Curtis, clerk and master of the county of Brunswick, appointed receiver of the estate. Curtis applied to McIlhenny and his sureties to have this bond satisfied, which they refused to do, alleging that a large portion of it had been paid off by accepting bills drawn on said McIlhenny by Langdon whilst acting as executor and accepted by McIlhenny in consideration of the bond aforesaid. In reference to the bills of exchange, the bill states that Langdon, after entering upon the execution of the will, employed one B. D. Worrell to build a house for the benefit of the estate; that in so doing he transcended the limits of the power conferred on him by the will and greatly impaired the estate; that in payment for this work the executor Langdon drew a bill of exchange on McIlhenny in favor of B. D. Worrell for more than $800, with an understanding between the said Langdon and McIlhenny that the payment of the bills should be a payment on the bond. There were other bills of exchange drawn by Langdon in favor of one L. P. Ivey upon defendant McIlhenny, and accepted by him, with a like understanding between them as to the bond.
When Curtis was appointed receiver he gave notice to (291) McIlhenny not to pay the bond to Langdon, and not to pay any order that he had made or might make. The defendant McIlhenny did not pay the orders, but contends that the acceptance of them is a payment to that amount. The bill prays a decree for the payment of the whole amount of the bond. Defendant demurred.
E. G. Haywood for plaintiff.
No counsel for defendant.
We are unable to discover any principle upon which the bill can be sustained. The plaintiff, as receiver of the estate of S. B. Everett, deceased, has a right under the order of the court of equity, by which he was appointed, to sue at law in the name of the executor upon the bond mentioned in the pleadings (3 Dan. Ch. Prac., 1991); and if the bills of exchange drawn by the executor and accepted by the principal obligor are not payments, he will, of course, recover the whole amount of the principal and interest of the bond without any deduction; but if those bills of exchange are legal payments, as from Ligon v. Dunn, 28 N.C. 133, it seems they are, then the plaintiff certainly cannot at law recover the amounts of them again; nor can we conceive any good reason why he should be allowed to recover them in equity. No collusion is alleged to have existed between the debtor and the executor for the purpose of defrauding the estate of the testator, and it is a new idea that the debtor should be compelled to pay his debt a second time because the executor has either wasted or misapplied the money collected on the debt. The demurrer must be sustained.
PER CURIAM. Bill dismissed.
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