55 N.C. 241 | N.C. | 1855
The plaintiffs, in their bill, allege that Rachel Rouse died in the county of Columbus, in the year 1841, intestate, possessed of a large personal estate, consisting of slaves, etc.; that at August term, 1841, of the County Court of that county, letters of administration were granted on her estate to the defendant, who qualified and took upon himself the burden of administering the said estate; that defendant, as administrator, has kept and retained possession of the assets ever since the year 1841, and still keeps and retains the same.
The plaintiffs allege further, that by law they are entitled to the above named property, and they pray that the defendant may be decreed to account with them for the above mentioned personal property, and deliver to them the slaves, with sums of money as may be in his hands belonging to this estate.
To this bill the defendant pleaded in bar, that at the Spring Term, 1851, of the Court of Equity of the same county, the plaintiffs exhibited their bill of complaint against this defendant, therein praying among other things, that the defendant might be decreed to account with the plaintiffs, for the personal estate of the said Rachel Rouse, and pay the same over to them, and that they demurred to the bill of the plaintiffs; and that this demurrer was sustained in the said Court of Equity of Columbus County, at its Fall Term, 1851, whereby it was adjudged, decided and decreed, that the plaintiffs were not entitled in Equity to the account and relief which by their bill was sought against this defendant; and for further plea, he said, that the plaintiffs (being the same persons now suing) prayed and obtained an appeal from the judgment, decision, and decree of the said Court of Equity to the Supreme Court of this State; and that the said cause coming on to be heard in that Court, at the December Term, 1853, their Honors affirmed the decision of the Court below. The defendant avers in his plea that the bill now exhibited against this (243) defendant, is for the same matter as is contained in the bill before exhibited by these plaintiffs, against this defendant.
To this plea the plaintiffs filed a replication, in which they admit that the Supreme Court, at the term of said Court mentioned in the *203 defendant's plea, did adjudge and decree that the property and effects then sought to be recovered of the defendant, did not, at that time, in any wise belong to the plaintiffs, but that the Literary Board of the State then had a right and title to the same.
But they further say in reply to the defendant's plea, that they ought not to be concluded and estopped by the judgment and decree above pleaded; for, that since the determination of that suit and controversy, by virtue of an Act of the General Assembly of the State, they have acquired the right to demand, sue for, and recover, all sums of money and other estate, of whatever kind, which shall remain in the hands of any administrator or executor, for seven years after his qualification, unrecovered or unclaimed by suit by creditors, next of kin, or others entitled thereto, and thus have acquired a title to sue for the property in question.
The cause was set down for hearing upon the bill, plea, and replication, and removed to this Court by the consent of the parties. The plaintiffs file a special replication by way of confession and avoidance. The new matter, is the fact that, since the decree in the former case, the Legislature has conferred upon the plaintiffs the right to all such property as that in question.
That the Legislature has power to transfer funds from one "agency" to another, is settled by the opinion in the former case. So, the new matter alleged in the replication, avoids the plea; for, in point of fact, this is not an attempt to try over again a matter that has been tried, but is the allegation of a title subsequently acquired. The former decree fixes the fact, that when the plaintiffs filed their (244) first bill, they had no title; but, non constat that they had no title when the second bill was filed. Although the former decree was between the same parties in regard to the same subject matter, yet, the title when the second bill was filed. Although the former decree was cree, by which the Court declares its opinion to be that the plaintiffsnow have title, is not inconsistent with, or repugnant to, the former decree, in which the Court declares its opinion to be, that the plaintiffs did not then have title.
Upon examination, it appears, that the plaintiffs did not have title when the bill was filed, because of the fact that the Act of Assembly under which they claim title, had not then gone into operation. This is a fatal objection, and the bill would consequently have been dismissed, *204 but without prejudice, so as to allow the plaintiffs, upon payment of costs, to file a third bill. This objection, however, is removed by consent on the part of the defendant's counsel, who very properly concedes, that the only object was to get an opinion of the Court in regard to the effect of the late Statute conferring title on the plaintiffs, and waives the objection, upon condition that the plaintiffs pay the costs of this suit; which is agreed to.
There will be a decree declaring the opinion of the Court to be, that the plaintiffs are entitled to the fund in the hands of the defendant, and the plaintiffs must pay the costs.
Per curiam.
Decree accordingly.
(245)
