77 F. 61 | U.S. Circuit Court for the District of Eastern North Carolina | 1896
The complainants, R. P. Page and wife, bring this suit to foreclose a deed of trust and appoint a trustee. The defendants contend that the bond secured by the deed in trust is in part paid. In September, 1881, one G-. V. Hardie, since deceased, loaned to defendant Dickens $500 of his own money, but took therefor a bond with a deed of trust to himself as trustee of the complainant Mrs. Pattie Page. It is evident that he intended a gift to Mrs. Page. As far as appears, he kept the bond, etc., in his possession, made no communication in regard to the matter to Mrs. Page and in no way consulted with her about it, nor did he record it. He subsequently received, in the manner hereinafter stated, property of defendant Dickens, which he sold for $450. He did not directly pay this money to Mrs. Page, but he died leaving-property largely in excess of this sum, and made Mrs. Page his residuary legatee of one-half of it. It appears to be conceded that he left her much more than the amount of the bond .secured by the deed in trust. Mrs. Page was Hardie’s niece. Hardie appears to have been a man without family as well as of considerable means, and the evidence shows that he took a friendly interest in the advancement of the defendant Dickens. He had previously loaned him $200 without taking security, to buy the lot upon which he built his bouse. The $500 in question was loaned him to enable him to go into business, and he subsequently loaned money to defendant’s firm. When defendant was subsequently in difficulty, he1 went to Hardie, and found the latter upon his death bed. Hardie then said to him: “You have come too late.” The deed in trust conveyed Dickens’ home lot, the one which he had bought with the first unsecured loan from Hardie, and which he had subsequently improved. These facts are necessary to an understanding of what follows.
Dickens went into business in September, 1881. In April, 1882, the firm failed. The original capital was the $500 which Dickens had borrowed as above and $500 more that his partner had borrowed of his, the partner’s, father. Upon the failure the firm made an assignment to one H. B. Dickens, securing as preferred debts the two sums of $500 each, borrowed as above stated, and also $107, which Hardie had loaned to the firm. The other creditors obtained judgments against the concern, issued executions, and sold the partnership property. The assignment seems to have been totally disregarded, and nothing seems to have been done under it. Upon the issuing of these executions the two partners had each his individual personal property exemption under the laws of North Carolina, amounting to $500, assigned to him. The other partner turned over his exemption to his father, and defendant Dickens turned his