36 N.C. 89 | N.C. | 1840
The bill, under an order for publication, had been taken pro confesso and set for hearing against the nonresident defendant, Robert Parsons.
The defendant James Parsons, by his answer, justified himself for relying on his legal defense against the note attempted to be set up because, as he alleged, of culpable negligence in Sullivan and Ryan in not attempting to procure payment from the principal, Robert Parsons, while he was solvent; and insisted that on the matters shown the note which he executed had been destroyed, and that there was no claim thereof against him in law or equity.
The defendant Parker, by his answer, declared that the note in question was received by him as and for a note payable to Sullivan, and as such was delivered over by him to the plaintiff Sullivan without alteration and without any suspicion on his part that there was any error in it; and alleged that afterwards, and without any agency on the part of the defendant, though in his presence, the alteration was made by direction of the plaintiff Sullivan. The defendant further insisted that if the plaintiff had, or either of them had, any claim against him, there was a plain remedy at law therefore, and also insisted upon the protection against this demand afforded by the lapse of time since the same arose. Upon the proofs the case, as stated in the bill, is fully *69 established. But upon the case so established we find ourselves unable to make any decree for the plaintiffs.
It is clear that there is no ground on which relief can be had against either Robert or James Parsons. (91) Supposing the claimant to be Sullivan and not Ryan, there never was any contract between him and these defendants except such as was testified by the bond; and as that has been altered without their consent, and with the privity of Sullivan, the same is destroyed in law. It being thus destroyed, and it being Sullivan's only ground of claim against them, he is, as to them, without remedy.
It is not quite so clear that there ought not to be relief against the other defendant, Jonathan Parker. Having, though perhaps unintentionally, deceived an illiterate man as to the character of a worthless paper taken from him, and upon the faith of his representation as of value, there seems to be a plain obligation of conscience upon him to make indemnity for the injury thereby sustained. But upon the rules which govern the administration of judicial equity we find ourselves precluded from helping the plaintiffs.
This is substantially the bill of Ryan, and in form Sullivan should have been made a defendant thereto. Now, if it be admitted that Sullivan had an equity to be relieved against Parker, either because of the unpaid part of the price of his land — supposed to have been paid, but in truth not paid, by reason of the worthlessness of the note received on account thereof — or because of the representations or assurances upon which he induced Sullivan to receive this worthless note as one good in law and valuable in fact, how has this equity been transferred to Ryan? He claims as purchaser of a bond which he took with full notice of the legal objections thereto. Under the purchase he is entitled to no more than the bond and all the remedies, legal and equitable, belonging to the ownership of it. Upon that bond Parker was in no way liable. But if this could be regarded as Sullivan's bill then, without expressing an opinion whether having taken the bond with a full knowledge of all the facts attending its alteration, he can be heard in any court to allege that he was ignorant of the legal consequences of such alteration, it is manifest that if he can there is no ground for his coming into equity. His demand, if to be sustained at all, is a plain legal demand against Parker to recover the unpaid price of his land or damages for the deceit put (92) upon him. Either of these actions would have been long since barred at law; and as early as the year 1829, when payment *70 was demanded of the altered note and was refused because of the alteration, Sullivan knew all that he knows now. No equity has since arisen by the discovery of a theretofore concealed fraud, and he must not be allowed to evade the legal bar, arising from lapse of time, by a mere change of forum.
The bill must be dismissed, but the case is not one in which the defendants can be allowed costs.
PER CURIAM. Bill dismissed.
(93)