92 N.C. 414 | N.C. | 1885
Lead Opinion
The Court adopted the findings of fact and affirmed the conclusions of law of the referee, overruled the plaintiff's exceptions, and adjudged the action be dismissed.
From this judgment the plaintiff appealed.
The facts sufficiently appear in the opinion. The plaintiff alleged in his complaint that the defendant was indebted to him on sundry accounts in the sum of $679.48. This, the defendant in his answer, denied, and thus it became necessary for the plaintiff to establish his alleged debt by proper proof.
By consent of the parties, the whole matter in contention was referred, under the Code of Civil Procedure, with instructions to the referee to report his findings of law and fact. The referee among other things, reported as follows:
"Prior to the commencement of this action, E. R. Stamps, an attorney at law, had certain claims against the plaintiff in his hands for collection, and presented the same to him for payment, who thereupon transferred to the said Stamps the account on which this action is brought, for collection, it being agreed between them at the time, that said Stamps should collect the same and apply the proceeds to the claims so held by him for collection against the said Wynne.
"The plaintiff cannot maintain this action, but it should have been brought in the name of the said E. R. Stamps as trustee of an express trust."
Upon these findings the court held, and we think properly, that the plaintiff could not recover. It is obvious that the plaintiff sold and transferred his debt against the defendant to E. R. *416
Stamps, upon the express trust that he should collect the same, and apply the money when collected, to the payment of the debts he, as attorney, held against the plaintiff for collection. The trustee had the ownership of the debt, and he was charged by the trust to collect it, not for the plaintiff, but for certain of his creditors. The plaintiff could not of right reclaim it, nor could he sell or dispose of it to another, except subject to the trust. The debt belonged to Stamps as trustee of an express trust. TheCode, sec. 177, provides that the action must be brought in the name of the party in interest, unless as otherwise provided, and section 179 provides, that the trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted, but he, in such case, must sue alone, or join the beneficiary with him. Willey v. Gatling,
The counsel for the plaintiff cited and relied upon Abrams v. Cureton,
There is no error, and the judgment must be affirmed.
No error. Judgment affirmed. *417
DEFENDANT'S APPEAL.
Addendum
This is the defendant's appeal in the case last reported. In the court below, the plaintiff failed to establish his alleged debt against the defendant, and the Court gave judgment for the latter in that respect. The plaintiff appealed to this Court, and we have affirmed the judgment. This put an end to the action, except in respect to the counter-claim pleaded by the defendant.
It might be questioned whether the alleged indebtedness of the plaintiff to the defendant, and pleaded as a counter-claim, was in strictness such, but it is unnecessary to decide any question in that respect, because the referee found the facts, and as matter of law, that the debt was barred by the statute of limitations. There was no exceptions to this finding, and the Court affirmed it.
So that the appeal of the defendant was improvidently taken. It presents no question for our decision, and must therefore, be dismissed.
Appeal dismissed.