Noblet v. . Green , 13 N.C. 517 ( 1830 )

FROM BURKE. Forbearance by a creditor is a good consideration for the promise of an executor, having assets, to pay the debt of his testator; and such promise will bind him personally. It is unnecessary to consider whether such a promise imports assets; since they are expressly found here. I should, indeed, think, notwithstanding some (518) contradictory dicta, that it did not. The promise is one thing, and the consideration another. And I see no more reason for saying that the consideration is in this case to be inferred from the fact that the promise was made, than that sufficient consideration should be implied from the mere promise in all other cases. But here, both the assets and forbearance are expressly alleged by the plaintiff, and stated in the case.

The ground of decision in the Court below does not appear on the record. But we collect that it went on the ground that the plaintiff was not the legal owner of the justice's judgment, and therefore that there was no debt to forbear; and so, that the forbearance was not a good consideration.

It is very true that where there is no original cause of action, an agreement for forbearance will not support a promise to pay; for there is nothing to be paid. And it is equally true that to a certain extent, and indeed generally, Courts of law only take notice of legal rights. In actions on bare equities, when they come directly into judgment, we cannot recognize them. And in suits in the name of the person having the legal right, we cannot know anybody but the plaintiff of record. But there are yet many instances in which mere equities are held by Courts of law to be of value. The sale of an equity of redemption will support a promise to pay the price. And a promise not to sue for a certain time in the Court of Chancery for an equitable demand is the same as constituting a consideration for the promise to pay it, as a like forbearance not to sue at law for a legal demand. All we say in this Court is that we cannot enforce or protect an equitable right, independent of the parties' contracts. But if they deal together upon those rights, and ascertain their value, and in consideration of the possessor of them yielding them up entirely, or refraining to enforce them, another promise to pay that value, or do some other act, it is a good promise. Courts of law are obliged to know that there is a (519) Court of Equity, as a part of the general public judiciary; and that it is as much to the advantage of a person to avoid a suit in that Court as in a Court of law. These positions are fully sustained byThorpe v. Thorpe (Ld. Ray., 663), and Dowdenay v. Oland (Cro. Eliz., 768). The plaintiff here had a clear remedy in equity to collect the debt against the wishes and resistance of both the defendant and the plaintiff's assignor. To forbear to use it was both a loss to him and an advantage to the defendant.

Besides, the express promise of the defendant recognizes the plaintiff as the owner of the judgment, and the real creditor. It is like the common case of the holder of an instrument not negotiable, placing it in the hands of another to collect. When the money is collected, it is no answer to the holder that he is not the owner. The receiver took it as his, and to his use collected the money, and to him he must pay it. I do not say that this defendant might not show that Alexander Potter was still the true owner, and that the plaintiff came dishonestly by the judgment. Upon that I give no opinion. But in the present state of the case, the express agreement of the defendant is a sufficient acknowledgment that the plaintiff is the real creditor.

PER CURIAM. Judgment set aside, and judgment entered for the plaintiff.

Cited: Hudson v. Critcher, 53 N.C. 486.

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