Emerson v. . Mallett , 62 N.C. 234 ( 1867 )

The facts as reported to the court by the Clerk and Master were (235) as follows:

The complainants, as heirs at law of Isaac Hudson, filed an ex parte petition at Fall Term, 1859, of the Court of Equity, for the sale of a mill and tract of land near Chapel Hill, belonging to the estate of the intestate. A sale was ordered at that term, and at Spring Term, 1860, it was reported that the defendant and one Walker had become the purchasers at the price of $2,430, and given bond with good security, payable at twelve months, for the purchase money. The sale was confirmed, and at Spring Term, 1861, the entry "Order to collect," etc., was made upon the docket. The order was repeated at Fall Term. On 2 March, 1861, the defendant paid to A. J. McDade, administrator of Isaac Hudson, and one of the petitioners (in right of his wife), $125, as part of the purchase money, and filed the receipt for the amount with the Clerk and Master. On 26 December, 1863, the defendant paid into office $2,752.24, the balance of principal and interest of the bond, in Confederate treasury notes. The Clerk and Master accepted these notes, surrendered the bond, and executed a deed to the defendant, Walker having assigned his interest to him. The petitioners were not informed of the payment until after the transaction, and they refused to receive the Confederate notes when so informed.

The defendant was notified in February, 1867, that at the approaching term a rule would be moved requiring him to show cause why the proceedings in regard to the alleged payment and the execution of the deed should not be set aside, and an order made for the payment of the price of the land by the defendant and his sureties.

It was declared by the court that the payment of the Confederate treasury notes was no payment, and that the deed was executed without lawful authority; and a decree was rendered that the defendant should, under a penalty of contempt, pay into court on or before (236) the first day of next term, the balance of the purchase money, after allowing the credit of $125 paid to McDade, and deposit in the office the deed from the Clerk and Master, by 1 May, 1867, as a security for the payment.

The defendant appealed. In Atkin v. Mooney, 61 N.C. 31, it was said that collecting officer was authorized to receive, without instructions to the contrary, whatever was current in the payment of such debts as he had to collect; but that there was a limit to his discretion, and that he would not be authorized to receive funds so depreciated as that it would amount to notice that they would not be received. And that case, which was acertiorari at law, was ordered to be put upon the trial docket, in order that it might be ascertained whether the fund received by the officer was, at the time of its reception (August, 1863), current with prudent business men in the payment of such debts as he had to collect. Whether an office was justified in receiving Confederate treasury notes must depend upon the circumstances of each particular case, and no inflexible rule can be laid down. Probably it may aid investigation to say that, as a general rule, an officer might have received them up to 1863, and ought not to have received them after 1863, upon ante-war debts; and that 1863 is debatable ground. Where an officer received them when he ought not, they were a payment of the debt to the amount of their value only. The remainder of the debt is unpaid, and the officer is liable for their value at the time they were received.

If, in this case, the Clerk and Master of Orange County ought (237) not to have received the money in December, 1863, then he will be chargeable with the value of the treasury notes at that time, and the bond given for the land will be satisfied to that amount, and the remainder will still be due. The payment of $125 to one of the plaintiffs will also be allowed.

So much of the decretal order appealed from as declares the payment made to the Clerk and Master in Confederate treasury notes on 26 December, 1863, void, and no payment at all, is erroneous. It was a payment to the amount of the value of the Confederate treasury notes at that time. Phillips v.Hooker, 193, ante. What that value was ought to be ascertained by reference to a commissioner, with instructions to report special matters at the instance of either party. And, as the Clerk and Master of Orange County is interested, he ought to have notice.

There is error in the order appealed from to the extent declared.

PER CURIAM. Decree accordingly.

Cited: Gibbs v. Gibbs, 61 N.C. 472; Beard v. Hall, 63 N.C. 41;Sudderth v. McCombs, 65 N.C. 188; Whitford v. Foy, Ib., 272; Greenlee v.Sudderth, Ib., 473; Baird v. Hall, 67 N.C. 233; Utley v. Young, 68 N.C. 392;Purvis v. Jackson, 69 N.C. 480; Larkins v. Murphy, 71 N.C. 561;Walls v. Sluder, 72 N.C. 437; Longmire v. Herndon, Ib., 633; Dockery v.French, 73 N.C. 426; Lord v. Beard, 79 N.C. 11; Melvin v. Stevens,84 N.C. 82.

Dist.: Covington v. Ingram, 64 N.C. 125.

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