Summary
In Ferebee v. Saunders, 25 N.C. 360, it was decided that "bond taken by a clerk and master in pursuance of an order of the court, and made payable to him and his successors in office, must, on his death, be sued upon in the name of his personal representatives, there being no act of the Legislature requiring bonds to be made payable to him and his successors in office."
Summary of this case from McDowell v. HemphillOpinion
(June Term, 1843.)
A bond, taken by a Clerk and Master of a Court of Equity in pursuance of an order of the Court, and made payable to him and his successors in office, must, on his death, be sued upon in the name of his personal representative, there being no act of the Legislature requiring bonds to be made payable to him and his successors in office.
APPEAL from Pearson, J., Spring Term, 1843, of CAMDEN.
This was an action of debt upon two notes under seal for two hundred and fifty dollars each, payable to George Ferebee, clerk and master in equity for the county of Camden, and his successors in office. The execution of the notes was not denied. The defendant's counsel contended, first, that suit should have been brought in the name of the present clerk and master, and could not be sustained in the name of the administrator of Ferebee; secondly, that the notes had been paid off and satisfied. The first question was reserved. It is unnecessary to state the facts relied upon in support of the plea of payment, as the Supreme Court gave no opinion on the Judge's instructions upon that point. The jury found a verdict for the plaintiff, subject to the question reserved. Upon that question the Court was of opinion that the notes being taken by Ferebee as clerk and master, under the order of the Court, the legal title did not vest in Ferebee as an individual, but vested in him as clerk and master, and that, upon the death of Ferebee, these notes should have remained in the office and passed to his successor, and that they did not pass to his administrator, so as to enable him to bring this suit. The Judge, therefore, set aside (361) the verdict and directed a nonsuit to be entered, and the plaintiff appealed.
Kinney for the plaintiff.
No counsel for the defendant.
The bonds were executed, payable to Ferebee, as clerk and master in equity for the county of Camden, and his successors in office. On the death of an obligee his interest vests in his personal representatives, though not included in the terms of it. A bond given to a man and his successors on his death, belongs to and is to be sued on by his executor or administrator, unless the obligee is a corporation sole. In England corporations are erected either by the charter of the King or by act of Parliament, or they exist by prescription. In this State they are created only by the Legislature. The Legislature has heretofore passed acts, directing bonds in certain cases to be made payable to persons holding certain offices and to their successors in office, as to the Governor and his successors, the chairman of the county court and his successors. These individuals then became sole corporations, by force of the acts of the Legislature, for the particular object contemplated, and a bonds taken in pursuance of those laws would go to the successor, and not to the executor of the obligee. But there is no act of the Legislature, which directs bonds of the description of those mentioned in this case, to be made payable to the clerk and master in equity, and his successors. The bonds in this case were executed to the clerk and master by an order of the court of equity, but that order could not vest in the successor to the office the legal right to sue on the bonds. We are of opinion that the administrator only had the legal right to sue on the bonds. Therefore, the nonsuit is set aside, and a
PER CURIAM. New trial.
Cited: S. v. McAlpin, 26 N.C. 150; McDowell v. Hemphill, 60 N.C. 96.
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