Edgecombe County NcArchives Court.....Thigpen, Vs. Balfour 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:25 pm

Source: North Carolina Reports
Written: 1811-18

JANUARY TERM 1813.

LEMUEL THIGPEN v. WILLIAM BALFOUR. 

From Edgecombe.

A, being security for B to C in a bond, C died, and E got possession of the 
bond after his death, and sold it to F, who threatened to sue A, anf A, to 
avoid suit, gave a new bond for the debt and took up the old one. It was 
afterwards discovered by A that the old bond had been discharged by B; F was 
ignorant of this fact when he purchased the bond from C, but knew it before he 
got the new bond from A, and did not disclose it to A. E was solvent when F 
discovered that the old bond had been discharged, but was insolvent when this 
fact came to the knowledge of A. Equity will relieve A from the payment of the 
money on the new bond, on the ground of the concealment by him of the fact 
that the old bond was paid at the time he got the new bond from A.

The bill charged that the complainant became bound as surety for one Causey, 
in an obligation to one Stringer, for $48.50, payable in December, 1796. That 
Stringer removed to Georgia, and Causey to the county of Pitt, in this State, 
about forty miles from the complainant, who, in consequence thereof heard 
nothing of the debt until 1804, when Balfour presented the obligation and 
demanded payment.

That Stringer died in Georgia, and complainant understood that one Ruffin, a 
man of little worth either in character or property, went to that State, and 
in searching among Stringer's papers found the bond, which he brought to this 
State, and sold or pretended to sell it to Balfour. That complainant to avoid 
a suit with which Balfour threatened him, gave a new bond for the debt and 
took up the old one, which he then believed to be due. And on applying to 
Causey for payment, Causey informed him that he had paid the debt to Stringer 
soon after it was contracted, and that Stringer had informed him that he had 
destroyed the bond. That complainant thereupon commenced a suit against 
Causey; but having learned since that the debt really had been paid by him, he 
had abandoned the hope of recovery; and he charged that he believed Balfour 
knew that the debt had been paid. The defendant, in his answer, insisted that 
Ruffin had paid a valuable consideration for the bond, and that he, the 
defendant, bought it fairly from Ruffin for £20, which Ruffin owed him; but he 
had not made this purchase until complainant had voluntarily agreed to give a 
new bond, upon a further day of payment being allowed. He denied all collusion 
with Ruffin, and also notice of the payment of the first bond when the second 
was given. He alleged that he could have secured the debt which Ruffin owed 
him, if complainant had not consented to renew the bond, for that Ruffin was 
then in possession of property, but had since become insolvent, so that he 
must lose his money if deprived of the benefit of the judgment. He further 
insisted that complainant could not rightfully claim the interposition of a 
court of equity for facts which, if true, would have formed a defense at law.

Upon the issues made up and submitted to the jury, they found that the 
defendant, when he purchased the old bond, had not notice that the debt was 
paid, but he had notice of that fact before he look the new bond payable to 
himself. They further found that Ruffin was solvent from January, 1804, till 
the April following, shortly after which time he became insolvent. The case 
was submitted without argument.

Hall, J. The jury have found that at the time the defendant purchased the old 
bond he had no knowledge that it had been paid. If by that purchase he had 
obtained any legal advantage of the complainant, and one or the other must 
have suffered in consequence of Ruffin's insolvency, equity would not 
interfere, but leave the loss where the law placed it. But by that purchase he 
gained no legal advantage. He could not have recovered at law upon that bond, 
for Thigpen had a good defense. Afterwards during the solvency of Ruffin, the 
jury find that the defendant had full notice that the bond was discharged; yet 
with this notice, and before Ruffin's insolvency, he procured complainant to 
give him the bond on which he had obtained judgment, founded on no other 
consideration than the circumstance that Thigpen had been security in the 
first bond. Here was such a concealment of the true situation in which the 
parties stood, and such an attempt to wrest money out of the complainant, 
without any consideration, when the defendant ought to have sought his remedy 
elsewhere, if Ruffin really owed him, that this Court ought to interfere. It 
is therefore ordered and decreed that the defendant pay to the complainant the 
full amount of all the money which he received upon his judgment at law, with 
interest thereon from the time he received it as well as all costs at law 
which complainant was bound to pay, together with the costs of this suit.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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