Love v. . Johnston , 72 N.C. 415 ( 1875 )

1. By the levy of the sheriff, the property in the slaves of the debtor was vested in him, and the title he made to the purchaser, whether the sale was public or private, was good, and after satisfying the executions, the overplus of the purchase money was due to J. R. Love, the first guardian of Commons, the debtor ward. If the guardian saw fit to take a note from the purchaser for the overplus instead of the cash, the defendant, for whose case and favor it was done, cannot object; he got the property and owes the money. If the sheriff committed a breach of his official duty in the manner of the sale, that is a matter between him and others, in which this defendant is no way concerned.

Upon the death of J. R. Love, the first guardian, the present plaintiff was appointed guardian and was also the executor of the first guardian. He received this guardian note from the estate of J. R. Love, his testator, and by returning it as a part of the estate of his ward, he fixed himself with the ownership in his rightful character of guardian. He, therefore, had the same ownership and right of action upon the note as the first guardian, just as an administrator de bonis non can, in his own name, sue upon notes made payable to the first administrator. Cowles v. Hayes,71 N.C. Rep., 230.

The cases cited by the counsel of the plaintiff, establish fully, that when the plaintiff became guardian, received the note as such and charged himself with it, he became the trustee of an express trust, and as such, he was the owner of the note, at least for all the purposes of this action. C. C. P. secs. 55, 57. Mebane v. Mebane, 66 N.C. 334; Biggs v. Williams, Ib. 427; Davidson v. Elms, 67 N.C. 228.

2. The note was executed in 1857, and was therefore, not a Confederate debt. If the tender of payment, had been, in other respects, sufficient, yet as it was made in Confederate money, of the nominal value of the note, it was not a legal tender for any purpose. As this tender was make in "the summer or fall" of 1863, when that currency had become so depreciated as to be a notice to trustees, not to receive it on well secured ante-war debts, had the guardian then received it, he would have violated his trust and incurred the risk of becoming personally liable for the full amount of the note. It was his right and duty, without resorting to any evasive pretexts for so doing, to refuse to receive the Confederate money: and no vague promise to deliver the note and receive the money, at a future time and place, or on his failure to do so, not to charge interest on the note from that time, was founded on a valid consideration, but was void. Terrill v.Walker, 65 N.C. 91; 66 N.C. 244; Wooten v. Sherrard,79 N.C. 334; Bank v. Davidson, 70 N.C. 118; Purser v. Simpson,65 N.C. 397; Gibbs v. Gibbs, Phil. 471; Bryan v. Foy, 69 N.C. 45;McKenzie v. Culbreth, 66 N.C. 534; Wells v. Sluder, 70 N.C. 291.

3. It follows, that the note stood upon the same footing as other notes due and without conditions, and that no demand before suit, was necessary. Whether the executors of the first guardian could pay the debts of the ward, by transferring this note to the plaintiff, who himself was one of these executors and the creditor of the ward; or whether the plaintiff could apply the note or its proceeds to his own re-imbursement; or whether he could expend more than the income of the ward's estate; are questions raised and discussed in the brief furnished us by Mr. Coleman, but they are questions which do not arise in this action. The plaintiff will be accountable to his ward for the proper management of his estate. The defendant will discharge himself by paying this note, which he justly owes, and the plaintiff and his former ward, can then settle their matters, as they may be advised.

There is no error.

PER CURIAM. Judgment affirmed.