Opinion
(August Term, 1849.)
1. Where a suit abated by the death of the defendant, and an execution issued against the plaintiff for all the costs, at the instance of the heirs of the deceased, the execution was void, and a note given by the plaintiff for the purpose of discharging it, being without consideration, the plaintiff has a right in equity to be relieved against it.
2. A note being passed without indorsement, and therefore there being no legal title in the person to whom it was transferred, he is subject to the same equity as the payee, without regard to the question of notice.
3. An officer who merely proceeds to collect an execution put into his hands as an officer ought not to be made a party to a bill of injunction, and if he is so, the bill will be dismissed as to him with costs.
APPEAL from an interlocutory order, made at Spring Term, 1849, of McDOWELL Court of Equity, Bailey, J., disallowing a motion to dissolve an injunction theretofore granted.
(200) The bill charged that the plaintiff Lackay had a suit in assumpsit pending in the county court of McDowell County against one G. W. Bradley; that the said suit abated by the death of the said Bradley, and that execution was issued by the clerk of the said court against the plaintiff Lackay for the whole amount of the costs of the said suit, being about $67, of which the plaintiff Lackay was, in law, only liable for about $12 or $13, that being the amount of costs incurred by him; that there being no administration on the estate of the said G. W. Bradley, the execution was issued in the name of "the heirs of the said Bradley"; that the execution was returnable to November Term, 1846, and was directed to the defendant John N. Curtis, who was the sheriff of the said county; that the said sheriff levied on the plaintiff Lackay's property for the amount of the said execution, and advertised it for sale; that on the day of sale the plaintiff Lackay was induced by the representations and persuasions of the said John N. Curtis to pay him $25 in cash, in part of the said execution and also in discharge of claims which the sheriff had against him, to the amount of $6 or $7, and also to execute to him, in discharge of the balance of the said execution, his note with surety; that the plaintiff Lackay thereupon paid the said sum of $25 to the said Curtis for the purposes as above stated, and also gave him his note with the other plaintiff, Mary Duncan, as his surety, according to the requisitions of the said Curtis; that the said Curtis afterwards, among other things, transferred to the defendants Conley and Brown the said note, but without any indorsement to convey to them the legal title; that a warrant was issued on the said note against the plaintiffs and judgment obtained thereon for the whole amount and interest in June, 1848; that an execution issued thereon, directed to the defendant James McNeeley, a constable of the said county, who (201) had now the execution and was about to collect it. The bill then prayed an injunction and process against the said Curtis, Conley, Brown, and McNeeley, and for relief, etc.
The defendants, in their answers, admitted all the material allegations in the plaintiff's bill, so far as the motion to dissolve the injunction was concerned.
Upon the coming in of the answers, a motion was made to dissolve the injunction, which was refused by the court, and the defendants, by leave of the court, appealed.
Avery for plaintiffs.
Edney for defendants.
The execution in favor of "the heirs of G.W. Bradley" against Lackay was void, and the note executed by the plaintiff to the defendant Curtis was therefore without consideration, and they have an equity to prevent its collection and to have it surrendered.
The note was transferred to the defendants Conley and Brown without indorsement. The legal title did not pass to them, and they hold it subject to the same equity that Curtis did, without regard to the question of notice.
The plaintiffs must have a decree for the surrender of the note and costs. As to the cash paid Curtis, the plaintiffs have their remedy at law, and the court cannot take jurisdiction.
The bill must be dismissed, with costs as to the other defendant, McNeeley. He was acting as constable — a minister of the law — and had no interest whatever in the controversy, and it was wrong to put him to the expense of filing an answer. Edney v. King, 39 N.C. 474.
PER CURIAM. Ordered accordingly.
Cited: Emmons v. McKesson, 58 N.C. 95; McLane v. Manning, 60 N.C. 611; Stout v. McNeill, 98 N.C. 3.
(202)