57 N.C. 425 | N.C. | 1859
The plaintiff alleges in his bill, that he was the owner of a negro woman, named Silvey, and her four children, William, John, Matilda; and Anderson, also of a tract of land, adjoining the defendant, Horton, on which he lived, containing about 75 acres; that he was old, feeble in mind, unacquainted with business, and helpness, and had no family but his wife, who was also old and infirm; that on the 22nd day of January 1852, he yielded to the repeated solicitations of his nephew, one Larkin Hodges, to convey to him all the said negroes, and took from him a bond, conditioned to support himself and his wife during their lives; that at the same time, it was distinctly understood and agreed, that the said Larkin should remove to plaintiff's home, and that the slaves were not to be removed from that place; that said Larkin did remove to plaintiff's land, and for several years did comply, *426 indifferently well, with his contract, but afterwards became totally regardless of it; that among other departures from his agreement, in the year 1857, he conveyed the two slaves, William and John, to his two sons, William and Edward, without the knowledge of plaintiff, who took them away from plaintiff against his will, and sold them to a trader, who carried them to the county of Rutherford; that in his perplexity and distress at such faithless conduct, the defendants, McCandless and Horton, approached the plaintiff and tendered him their sympathy and assistance; that the former of these, was the sheriff of the county, in which he lived, and the other had filled that office, and was his near neighbor; that they were men of character and had always been friendly, so that he readily accepted their proffered services; he gave them a power of attorney to act in the business, and they followed the slaves, John and William, to where they had been sold, in the county of Rutherford, and there had the two sons of his nephew Larkin, arrested on a writ, returnable to the Superior Court of Watauga, and the same process served on Larkin Hodges and one other person, whom they said was in confederacy with the others; that on returning, the defendants told plaintiff what had been done, and told him that the other slaves, Silvey, Matilda and Anderson, were not safe in his possession, for that the Hodges intended to get them from him by force or fraud, and run them out of the country; that he was greatly alarmed and distressed at this information, without funds or money, and in his great need, adopted the suggestion of the defendants, that he should convey the slaves to them, and put them into their possession; that a bond was accordingly executed, the condition of which was, "that whereas, the said Jesse Mullins, has this day conveyed to the said Horton and McCandless three negro slaves, a woman and two children, which he is legally possessed of as he claims, and as there is other claims on the same; now, if the said Horton and McCandless shall deliver to the said Jesse Mullins, his heirs, executors and assigns, the above negroes, after they have established a good and lawful title to them, then this *427 obligation to be void, otherwise to remain in full force;" that a few days after this, the defendants made a compromise with Larkin Hodges, in which, as plaintiff's agents, they agreed that he, Hodges, might retain the slaves, William and John, as his right, but was to surrender all right and title to the other slaves, and the plaintiff, on his part, was to relinquish all interest in the bond taken for the support of himself and wife, and the plaintiff was to dismiss the suit brought against said Larkin and others for the abduction of the slaves; that in fulfilment of this compromise, the slaves, Silvey and her two children, were conveyed to thedefendants, not as agents, but individually, and the bond, held on Hodges, was surrendered to him, and plaintiff released, by deed, all claims to the slaves, Williams and John; that abusing the confidence which plaintiff so implicitly had in these defendants, by pretending that he was still in great danger they persuaded plaintiff to acquiesce, for the present, in the conveyance made by Hodges on the compromise, and to let the title to the negroes, Silvey and children, remain in them, and furthermore, they persuaded him to convey to them the tract of land, on which he lived, in fee, which was worth _____, and to take back a life-estate for his own life, and at the same time, they deceitfully prevailed on the plaintiff to take their bond to support himself and his aged wife for their lives; that even this was done also under a promise and assurance that plaintiff should not again be disturbed in the possession of Silvey and her children, but immediately on the completion of this hard arrangement, to show how selfish and interested had been the interference of the defendants, they forthwith took exclusive possession of Matilda, the elder child of Silvey, and asserted the absolute right and domination over all these slaves under the deed made them by Larkin Hodges; he alleges that the taking this conveyance to themselves, when acting as his agents, was a fraud upon his rights, and was designed and intended to accomplish the deceitful scheme, whereby they have got all he is worth for a very small consideration, and by their pretended kindness, leave him worse off than he was in the *428 hands of the Hodges, by the value of the land. The prayer of the bill is for an injunction to restrain the defendants from taking Silvey and Anderson from the possession of the plaintiff, and from selling Matilda or removing her out of the county; that the conveyance to them from Larkin Hodges, may be declared to be void and surrendered for cancellation, and for general relief. The defendants demurred, and the cause being set down for argument, was sent to this Court. The demurrer is founded mainly on the objection that Larkin Hodges, is not made a party to the suit. — With respect to him the bill charges that the defendants, as the duly authorised agents of the plaintiff, compromised the matters in dispute between him and the said Hodges, and fraudulently took from the latter a conveyance for the slaves, now in controversy, to themselves instead of the plaintiff, as they ought to have done. The bill sets up no claim against Hodges, and prays for no relief against him. He is then, according to the allegation of the bill, an assignor, all of whose interest has been transferred to the defendants, and this is admitted by the demurrers. In such a case it is settled, that theassignor is not a necessary party to a bill, seeking relief against the assignee alone; Polk v. Gallant, 2 Dev. and Bat. Eq. 395; Thompson v.McDonald, ib. 463. See also Thorpe v. Ricks, 1 Dev. and Bat. Eq. 613.
The more general ground of demurrer for want of equity in the bill, is equally untenable. The allegations are, that the plaintiff was old, illiterate, unacquainted with business, feeble-minded, and friendless; that he had just been grossly deceived by his nephew, and was likely to be greatly injured by him; that the defendants, one of whom was the sheriff of the county, and the other had been so, came to him, professed to be his friends, and proposed to become his attorneys in fact, with no purpose of gain to themselves, but solely with the *429 view to recover his slaves, which the sons of his nephew had wrongfully carried off, and to assert his rights against that nephew; that under these circumstances, the defendants, by the fraudulent means set forth in the bill, which obtained the conveyances for his land and slaves, against which it is the object of the bill to obtain relief. The facts thus related, are admitted by the demurrer to be true, and it would be a reproach to any court, professing to be governed by the principles of equity and good conscience, not to give the relief prayed. This Court, at least, will not hesitate to do so; and, in doing so, it is only carrying out the principles established by former adjudications. See Buffalow v. Buffalow, 2 Dev. and Bat. Eq. Rep. 241, and Deaton v. Monroe, 4 Jones' Eq. 89, and the cases therein cited.
The demurrer is overruled with costs, and this will be certified to the Court below, to the end that the defendant may be ordered to answer the bill.
PER CURIAM, Demurrer overruled.