Heart v. . Bryan , 17 N.C. 147 ( 1831 )

Hale, Judge.

.The defendant Barnes, by his deed of assignment in favor of his creditors, transferred and assigned over to the trustees therein named, considerable real and personal estate particularly described, and all other real and personal property of which he was seised or possessed, all book debts, bonds and notes of every description ; and the trustees are directed to collect the debts, whether due by bond, note, open account or otherwise. He also expresses that the trustees shall have and hold the real and personal estate, and choses in action, and accruing interests, with the appurtenances &c. in trust &c. I am inclined to'the opinion, that this general description of property includes any balance that might be due to Barnes from the estate of Whitmell Bell. (Bayard v. Hoffman 4 Johns. Ch. R. 450). Neither is that opinion varied by a clause in the latter part of the deed of assignment, in which he reserves the right to apply so much of the funds, as shall he requisite and necessary to the settlement of his accounts, as executor of PTIdlmell Bell. This clause was only inserted to secure that estate against loss by his insolvency ; and can have no application, where it turns out that the estate is in, debt to him. But this view of the case arises only from the deed of assignment, and the account that has been taken, and now made an exhibit, between Barnes and his testator’s estate. From that account it appears, that the estate of Whitmell Bell falls in debt to Barnes in the sum of $1375. It is necessary to consider, how that balance arose, and this leads us to the consideration of Dempsey Bryan’s petition. It appears from an exhibit in the case, which is admitted to bo evidence, that Dempsey Bryan became an indorser for Elizabeth Bell on a note to the bank at Tarborough, for $2500, in the year 1826 ; that in the year 1828, David Barnes the defendant, renewed the note in his own name, and as ex ecutor for Whitmell Bell, with Dempsey Bryan as surety or indorser, for the balance of the money due on Elizabeth Bell’s note, which was §1800. This note ivas renewed by the same parties on the 9th day of December, 1828, for §1600. Suit was brought upon it, and the judgment was paid off by Bryan. It is to be observed too, that part of the money, for which Elizabeth Bell gavcher note to the hank, had been received by her husband. ' After his death, his note was renewed by Barnes as executor, with different indorsers, up to the time when Elizabeth Bell gave her note with Bryan as her indorser. It appears from this statement, and it is admitted by Barnes in his answer, that the money thus obtained from the bank was applied to the use of Whitmell Bell’s ostate ; and it is owing, no doubt, to that application of it, that a balance has been found in favor of Barnes in his settlement of that estate. For if Barnes had paid the debt due to the bank, his claim to it would be both legal and equitable. But that debt was discharged by Bryan, and he ought to stand in the room of Barnes, as to that balance coming from Bell’s estate ; for the money borrowed from the bank, which he had discharged, has produced it. No doubt this construction of the transaction occurred to Barnes, when he drew the deed of assignment. For if §1600, the amount paid by Bryan, is deducted from his credit in his account with Barnes’ estate, he would have fallen two or three hundred dollars in debt to it; and therefore it was, that he made provision against loss to that estate, on account of his insolvency.

It is for these reasons, and from this view of the case, that I think the prayer of the petitioner Bryan ought to be granted.

Buefin, Judge, dissented, but delivered no opinion.