34 N.C. 324 | N.C. | 1851
As the intestate was sheriff and also one of the defendants in the execution, he had no power to act in his official capacity. The question can, therefore, be presented in a plainer view by relieving it from both of those circumstances and treating it as if the testator had handed the execution to a third person, who was neither sheriff (326) nor one of the defendants, with the instructions above stated; the money is accordingly received and is paid to Fleming, and the question is, Is this payment to Fleming an answer to the action?
Fleming was the legal owner of the bond after the sale and delivery to the testator. He was also the legal owner of the judgment, had control of it, and might have released it at any time while the "chose in action" was in existence.
The legal effect of the contract of sale and delivery of the bond was to constitute the testator an agent of Fleming to receive the money, but the money vested in the testator as legal owner the moment it was received, for the chose in action, of which Fleming was the legal owner, was extinguished by an act which he had authorized to be done, viz., the reception of the money, and the money vested in the testator as legal owner by force of the contract of sale which thereby became executed in the same way as if Fleming had himself received the money and handed it to the testator in execution of the contract.
If, therefore, the testator had called on Brigman and received the money, it would have been his, and Fleming would have had no right to it or cause of action for it.
The circumstance that the testator, instead of going himself, sent the defendant's intestate for the money can make no difference. The instant he received it it became the money of the testator, and the payment to Fleming"was in his own wrong." He must look to his bond for indemnity. *225
PER CURIAM. Judgment reversed, and judgment for the plaintiffs according to the verdict.
Cited: Monday v. Silver,
(327)
