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 1871-01

Lemly v. . Atwood , 65 N.C. 46 ( 1871 )


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  • R. GRAY, (SEAL.) H.A. HOLDER, (SEAL.)

    The said Jesse W. Atwood died and one C.L. Banner administered upon his estate, and having as he alleged accounted with the estate for the amount of the principal and interest of the said bond, he appropriated it to the payment of his own individual debt to one Solomon (47) Mickey, with the assent and concurrence of the said Gray and Holder. These facts being found by his Honor, Judge Cloud, at Chambers, in the County of FORSYTHE, on the 28th day of May, 1870, he gave judgment against the said Gray and Holder, ordering them to pay the plaintiff the amount of the principal and interest of the said bond, and also the costs and disbursements of the plaintiff in the supplementary proceedings, and from this judgment the said defendants, Gray and Holder, appealed. The only question is, whether the assignee of a trust fund — in this case a bond — with notice of its character, who takes it for purposes other than the trust, is liable to the cestui que trust who suffers loss. It is settled that he is. Exum v. Bowden, 4, 39 N.C. 281.

    Jesse Atwood, guardian of John T. Atwood, held a bond payable to him as guardian on its face. Jesse Atwood died and C.L. Banner administered on his estate, accounted to the estate for the bond, took it as his own, and assigned it to the defendant, in an individual transaction with the defendant; and John T. Atwood, the ward, by reason of the insolvency of the estate of his guardian, lost the amount of the bond. It is said that Banner had the right in equity to assign the bond, because he accounted to Jesse Atwood's estate for it, and, therefore, committed no fraud. But then the bond was not Jesse Atwood's and both Banner and the defendant had expressed notice, as the bond, upon its face, was payable to Jesse Atwood asguardian. The ward *Page 37 having suffered loss had the right to follow the fund in the hands of the defendants.

    No error.

    Per curiam.

    Judgment affirmed.

    Cited: Ruffin v. Harrison, 90 N.C. 571; Dancy v. Duncan, 96 N.C. 117;Lathem v. Wilcox, 99 N.C. 373; Lavecchia v. Land Bank, 215 N.C. 74;Jarrett v. Green, 230 N.C. 107.

    (48)