Deans v. . Dortch , 40 N.C. 331 ( 1848 )

The bill charges that David M. Deans was in the year _____ appointed guardian to the infant children of William D. Strickland, and upon stating the accounts with Granberry Vick, the former guardian of his wards, found him largely indebted to them; whereupon he immediately brought an action upon his guardian bond against him and his sureties, towit, Jordan Joiner, John H. Drake, and Samuel W. W. Vick. This suit was compromised by the plaintiff's taking the several bonds of each of the sureties for his ratable proportion of what was due. The bill charges that Samuel W. W. Vick executed his bond for $595.33, his proportion of the sum due, and gave as his surety Josiah Vick. The bond was dated about 9 November, 1842, payable one day after date, and witnessed by J. J. Taylor. The bill then alleges that a few minutes after the execution and delivery of the bond, he delivered it to Josiah Vick, at his request, to enable him to procure an additional surety with himself, and that he has never seen it from that time, and he believes that it was lost or destroyed by Josiah Vick. It charges that the (332) plaintiff frequently demanded the bond from Josiah Vick, who never would deliver it up, but promised that it should be arranged, and that no part of it has ever been paid, but the whole remains due. Samuel W. W. Vick died in June, 1845, and the said Josiah soon thereafter; and at November term of the county court of the same year the defendant Dortch was appointed administrator of Samuel, and the defendant Blount, of Josiah; and they possessed themselves of all the estate of their several intestates. The bill prays that the defendants may be decreed to pay the said bond, etc. To this bill the necessary affidavit is affixed.

The answers admit that the plaintiff was the guardian of the children of William Strickland, and that he instituted a suit against the former guardian, Granberry, and his sureties, who were the persons mentioned in the bill; that they are the legal representatives of the two Mr. Vicks, Samuel and Josiah, but deny all knowledge of the alleged settlement of that suit, or of the bond charged to have been executed by their intestates; that they never heard of it except from the plaintiff, and that not until about the time the bill was filed. They deny having it in their possession, and aver that after the death of their several intestates, and after procuring letters of administration, they examined the papers belonging to each, and found no such bond.

Replication was taken to the answers, the case set for hearing, and transferred to the Supreme Court. The object of the bill is to set up a lost bond against the estates of the two Mr. Vicks. Courts of equity originally obtained jurisdiction in such matters upon the ground that in a court of law the plaintiff could not obtain redress, for the reason that he could not (333) make profert of the bond. This reason has long ceased, and with it the jurisdiction acquired by courts of equity would also, in all probability, have ceased, but for the rules adopted there in granting relief. The courts of equity, in doing justice to the plaintiff, will also take care he shall do justice to the defendants, they requiring him to indemnify the defendants against the bond. It is not in the nature or composition of a court of law to cause the indemnity to be given or to adjust its terms. Equity, therefore, has retained this jurisdiction, equally beneficial to the obligee and the obligor, because the relief afforded is more complete, adequate, and perfect than at law. 1 Story Eq., 418. When the plaintiff has given to this Court jurisdiction of the case, by his affidavit, the cause is then to be tried by those rules of evidence which are common to both tribunals. The first thing for the plaintiff to do in this case was to prove, by competent testimony, the existence of the bond alleged to be lost. He must show that it was, in law, a perfect instrument. He, in his bill, affirms such to be the fact. The laboring oar is on him; and a court of equity ought not, and will not, grant him relief when his testimony leaves that fact in doubt and uncertainty. In general, rules of evidence in courts of equity are the same as in courts of law. In this case, then, it is necessary the plaintiff should show that the instrument was perfected in all its parts; that it had been sealed and delivered by the party he seeks to charge. If the action were at law, and the paper had a subscribing witness, it would be necessary to prove the execution by him. The plaintiff has filed the deposition of Mr. Taylor, who, he alleges, was the subscribing witness. He states that he was present at the settlement, wrote the bond, saw Josiah Vick sign it as surety for S.W. W. Vick, and that he signed it as a witness. This took place somewhere about 1842 or 1843, and he thinks (334)Mr. Deans took it. Delivery is an essential part of a deed, without which, though the paper may be signed and sealed, it is not a deed. Mr. Taylor leaves this important fact in doubt, and the other testimony, if it does not increase the doubt, does not remove it. A witness of the name of A. D. Barnes states that he saw the bond which was given by Samuel W. W. Vick upon the settlement, at which he was present, "and he believes Josiah Vick was a security to the said bond, though he has no distinct recollection of this." J. D. W. Barnes states that in 1842 or 1843 he met with Mr. Josiah Vick coming out of the courthouse, who stated to him that he had told David that he would have the bond filled up for Samuel Vick, and he was going out to look for security. In another deposition he states that when he met him, as above stated, he had a bond in his hands, which, he said, he was going to have filled up. On their way home the same night Vick told him the bond was not yet filled up. About a month before J. Vick's death he told him at his mill he would have that bond to pay. We cannot say the testimony satisfied us that the paper ever was delivered by Josiah Vick. Not one of the witnesses proves it. Mr. Taylor, who wrote the paper, and states that Vick signed it, only thinks the plaintiff took it. Immediately after, however, it is seen in the hands of Josiah Vick, who stated he was going out to get security. The plaintiff in his bill alleges that he handed it to him, at his request, but no witness proves it, and subsequently Josiah Vick stated to Barnes that the bond is not yet filled up. A remarkable circumstance in the case is that the witnesses who speak to time can none of them fix it, even as to the year. Such want of memory is not calculated to beget much confidence in the correctness of these statements. If the facts were such as the bill states, it is very extraordinary that the plaintiff did not sooner commence his action. He alleges (335) that the transaction took place in 1842, and he did not file his bill until October, 1846, and not until both Samuel Vick and Josiah Vick were dead. His allegation, that he frequently demanded the bond of Josiah, is not proved. For four years and more he suffers this paper to remain in the hands of Josiah without even a demand for it. The thing is strange and unaccountable. The case is not without its difficulties on the part of the defendants; but as it was the duty of the plaintiff to sustain his allegations by sufficient testimony, whatever doubts we may have, we cannot declare that the paper-writing ever was delivered by Josiah Vick as his deed. If the bill had been filed during the life of Josiah Vick, the plaintiff would have been entitled to his evidence as to the delivery, and the Court might have been freed from the necessity of groping in the dark after probabilities, and if the plaintiff sustains an injury, it is the consequence of his own folly.

PER CURIAM. Bill dismissed with costs.

Cited: Loftin v. Loftin, 96 N.C. 100; Harding v. Long, 103 N.C. 7;Sallinger v. Perry, 130 N.C. 138.