41 N.C. 74 | N.C. | 1849
William Corprew died in 1841. Wilson Corprew, one of the defendants, in October of that year was appointed his administrator and the plaintiffs were his sureties. In November the administrator sold the effects of the intestate, and, among other things, sold a negro boy to one Chesson and took his note with two sureties for the price, $736, payable to the said Wilson as administrator of William Corprew, six months after date, 1 November, 1841. On 23 February, 1842, the said Wilson sold the note to the defendant Armistead at a discount of 25 per cent or to the defendant Latham, and he sold the note to defendant Armistead at a discount of 25 per cent, in the presence of the said Wilson.
The said Wilson was at that time very much embarrassed. His property was under execution for a large amount of debt, and was afterwards *64 sold without paying his debts, and he has since been insolvent. The said Wilson wasted the estate of his intestate, and the plaintiffs, as his (75) sureties, have been compelled to pay the sum of $586 to the creditors of the intestate. The note of Chesson was undoubtedly good at the time it was sold to Armistead, and he has since collected it.
The original bill charges that the said Wilson sold the note to the defendant Armistead; that he was insolvent at the time, and this fact was known to Armistead; that the note belonged to the estate of the intestate, as was apparent on its face, and this was known to Armistead; and that Armistead received the note in payment of a debt due to him by the said Wilson. The prayer is for a decree for an amount sufficient to repay the plaintiffs the amount paid by them as sureties.
The answer of Armistead denies that he bought the note from the said Wilson; but admits that he did purchase it from one Latham at a discount, and avers that he paid Latham the price in cash. The answer denies that the said Wilson was insolvent at the time the defendant purchased the note; and avers that "he then owned a considerable amount of both real and personal property, which was not sold for some time afterwards," since which time it is admitted he has been insolvent.
The plaintiffs then amended their bill by making Latham a defendant, and charge that the note was sold to Armistead by the said Wilson, or was sold by the said Wilson to Latham in the presence of Armistead, and immediately sold by Latham to Armistead, and that Armistead and Latham appropriated the proceeds of the note to themselves, in pursuance of a contrivance and conspiracy, well knowing that the said Wilson was insolvent and was committing a breach of his trust and was making a misapplication of funds which, they knew, belonged to the intestate.
The answer of Armistead avers that he bought the note of Latham, and paid him the price in cash; denies any knowledge of an intention on the part of the said Wilson to misapply the funds of his intestate, (76) and admits the receipt of the amount of the note from Chesson.
The answer of Latham denies that he bought the note from the said Wilson, or sold it to Armistead, and avers that the said Wilson told him he was about to sell the note to Armistead, and requested him to go with him to the counting-room of Armistead, which, he did, and the said Wilson in his presence sold the note to Armistead, and received from him $545 in cash, the net proceeds, after deducting 25 per cent. He admits that the said Wilson was then much embarrassed, but he was not sold out until some time afterwards. He denies that he received from the said Wilson, or any other person, any part of the proceeds of the sale of the note.
The answer of Wilson Corprew admits that he sold the note to Armistead and received the money from him; but he does not recollect whether *65 he sold the note to Armistead himself or got Latham to act as his agent in making the sale.
It is not necessary to recite the testimony. The answers of Armistead and Latham, as well as that of Corprew, are evasive and unfair, and, taken in connection with the testimony, create a strong suspicion that the facts are that in January, 1842, Corprew, being pressed for money and his property being all under execution, borrowed of Latham $650, at a premium of 10 per cent, to be returned at March court, when Latham had promised to return it to one Gaither, of whom he had borrowed it to "accommodate" Corprew; that on 25 February, in order to raise money for Latham, Corprew, in his presence, sold the note in question, appearing on its face to be the property of the intestate, to Armistead, at 25 per cent discount; (77) received the net proceeds in cash and paid it to Latham, and that Armistead knew that the money was to be so applied. If these facts had been so established by the proof, the plaintiffs would be entitled to the decree prayed for. But the answer denies the material facts, and the proof is not sufficient to weigh them down.
As to Armistead, he bought the note and knew that it was the property of the intestate; but he denies that any part of the price was applied to the payment of the debt due to him by the administrator. This is true. He denies, also, that he knew of an intention on the part of the administrator to misapply the fund. The proof does not show this to be untrue. He knew the administrator was hard pressed and that all his property was under execution — in fact, one of the executions was in his favor for near $1,000; he knew the note was entirely good, and, it being unusual for administrators to sell "sale notes," he must have suspected from the rate of discount submitted to that the object of the administrator was to make a misapplication of the fund. This would be sufficient to subject a purchaser from a trustee who has no power to sell, and, it may be, a purchaser from a guardian; but it is not sufficient to subject a purchaser from an administrator, for an administrator has a right to sell all of the personal estate, notes as well as chattels, and the purchaser is not bound to see to the application of the money, and cannot be made liable, unless he is fixed with notice, as by showing that the proceeds are applied to a debt of his own, which would not only fix him with notice, but make him a participator in the fraud, or by showing in some other way that he had actual notice of the intended misapplication. Putting him on inquiry, or constructive notice, will not do. The exigency of estates *66
sometimes makes a sale of notes necessary. Tyrrell v. Morris,
When a trustee sells the trust fund the purchaser must put himself on the footing of having an equal equity with the cestui que trust, and this he cannot do if he has notice, actual or constructive, of the trust; for, as the trustee has no right to sell, the sale amounts to a breach of duty, in which the purchaser, of necessity, participates, without reference to the application of the fund. Whereas an administrator has a right to sell, and the sale is no breach of duty; the purchaser is innocent unless he is privy to a misapplication of the price, and knowingly aids, by his purchase, an intended fraud.
As to Latham, if he received the price from the administrator, he would be liable; but he denies having received any part of it, and the proof does not establish the contrary; for he did pay back the money to Gaither until near three weeks after the note was sold, and the money cannot be traced during the intermediate time.
PER CURIAM. Bill dismissed, but without costs.
Cited: Bradshaw v. Simpson, post, 246; Wilson v. Doster,
(79)