Woodfin v. . Smith

The defendant Fortune explicitly denied in his answer that the payments received by him from the plaintiff were received on account of, or directed to be applied by, the plaintiff to the discharge of the court execution, but declared that they were applied, in the first place, to the satisfaction of the justice's judgments, simply because the payments were sufficient to extinguish them, and averred that this application was made with the knowledge and approbation of the plaintiff.

He distinctly denied all knowledge in relation to the alleged matters of defense set up by the plaintiff against those judgments in the name of Statton, and all concert and combination with his codefendant, Smith. The defendant Smith answered that he had been informed, and believed that Whitehead purchased the judgments of Statton at the request of the plaintiff, and that after the death of Whitehead, the executions having remained dormant more than a year and a day, the administrator of Whitehead caused them to be revived by citation; that the defendant took those judgments from the administrator after they were so revived, and at their full amount, in satisfaction of a debt due him; that before he traded for them he had repeated conversations with the plaintiff, in which the plaintiff stated that a settlement ought to have taken place between him and Whitehead, and that he believed he had claims (453) against Whitehead to the full amount of the judgments, but as Whitehead had died before any settlement, he would be obliged to pay them; that in consequence of these conversations he consented to take the judgments as a payment of the debt which the administrator of Whitehead was liable for. He denied all combination or collusion with his codefendant, insisted that he was in conscience entitled to retain the money received upon those judgments, and, further, that if, in truth, the plaintiff had paid them off to Whitehead, or to Statton through Whitehead, the plaintiff ought to have made that defense before the magistrate when cited to show cause why execution should not issue; or, if prevented from obtaining justice there, he should have sought the ordinary and legal remedies by application to the courts which review the proceedings before magistrates. No evidence of any kind is offered on the part of the plaintiff to support his allegation of his having directed an application of his payments. There is no ground on which he can have relief against Fortune, and the bill must be dismissed as to him, with costs.

If we were satisfied of our right to grant relief against the other defendant, we might hold that the plaintiff's allegation of having paid the judgments of Statton to or through Whitehead is true, for Statton testifies that he sold the judgments to Whitehead, and that thereupon the latter remarked that the plaintiff had already paid him the amount of them.

There is no evidence to support the allegation of the defendant that he bought these judgments in consequence of the plaintiff's admission that he was bound to pay them; and there is evidence which renders it at least probable that he was aware of the plaintiff's claim that the original judgments had been paid off in Whitehead's lifetime. At all events, as the judgments were not assignable at law, the defendant, by his purchase, took the judgments, liable to any equities subsisting against them.

But we are unable to perceive any satisfactory ground on which a court of equity ought in this case to interpose for the relief of the plaintiff. The alleged payment should have been pleaded when the plaintiff was cited to show cause why executions should not issue. (454) The payment, if made, was sufficient cause against the ordering of the executions, and he had notice and opportunity to show it. He has not proved that he requested a postponement of the trial, or received any assurance, direct or indirect, that it would be postponed. Reese, the officer examined for that purpose, testifies that he "cited the plaintiff to attend at the widow Whitehead's, but that he failed to attend, alleging that he had to attend Haywood Court, and saying also that he had paid the claims." It does not appear that the plaintiff was deceived by any promise to postpone the trial on the citation, and he has not proved his inability to attend. The question of payment must be considered as having been regularly passed upon by the judgment rendered on the citation. Besides, he has alleged no excuse for not endeavoring to have a new trial, or appeal, or remedy by recordari; has alleged no efforts on his part to ascertain what had been done on the citation, and no steps taken to correct the injustice of this adjudication for many months after it was rendered.

We feel ourselves constrained to hold that, under these circumstances, he is not entitled to the extraordinary aid which he asks for. The bill must, therefore, be dismissed as to Smith, also; but in this respect it is dismissed without costs.

PER CURIAM. Bill dismissed.

Cited: Grantham v. Kennedy, 91 N.C. 153.

(455)