Johnston County NcArchives Court.....Atkinson, Vs. Farmer 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:46 pm Source: North Carolina Reports Written: 1811-18 June Term 1813. JOHN ATKINSON v. JOHN FARMER and others. From Johnston. 1. A party has no remedy to recover a debt once sued for, the execution on which has been returned "Satisfied." 2. At a sheriff's sale there is no warranty of title, independent of the act of 1807, ch. 4. Whoever, therefore, purchases, runs the risk of a bad title. 3. No man can be compelled to become debtor to another, except in the case of a protested bill of exchange paid for the honor of the drawer: if, therefore, at a sheriff's sale, the plaintiff in the execution purchase the property, and the title prove bad, the law raises no assumpsit in the debtor or defendant in execution to make good to the purchaser the sum lost by such purchase. 4. If an administrator has delivered over the property to the next of kin, or has delivered part and wasted part, so as not to be able to pay the debt, the property may be followed into the hands of the next of kin, although the administrator has wasted more of the assets than the debt amounts to. 5. But where, in the settlement of an administrator's accounts, a certain sum is left in his hands to pay a debt, as to the next of kin that debt is paid; the creditor must look to the administrator and his securities. But the securities are not liable if suit has been brought by the creditor against the administrator for this debt, and at the sheriff's sale such creditor has purchased the property sold, by reason of which the execution is returned "Satisfied," although the creditor may afterwards lose the property by reason of a superior title. This bill was filed against the administrator and distributees of the estate of William Farmer, deceased, charging that William Farmer being indebted to John Atkinson upon bond, died intestate, and administration of his estate was granted to Benjamin Farmer, who was sued by Atkinson, and judgment recovered. Execution issued against the goods of the intestate in the hands of his administrator. Pending the suit the administrator delivered to the next of kin, who were the defendants in this case, their several shares of the intestate's estate; nevertheless, the sheriff seized and sold some of the negroes delivered over to the defendants, and complainant became the purchaser at the price of $170, and took the administrator's bond for the balance of the debt; in consequence of which the sheriff returned the execution "Satisfied." Not long afterwards the distributees, to whom the said negroes had been delivered, got possession of them, and complainant being advised that he could not recover them, as the title did not pass to him by the sale, and his remedy at law being gone for his debt, he charged that other property had been sold by the administrator, the proceeds of which had not been exhausted by the payment, of the intestate's debts, and prayed for an account of this sale, and for payment to himself of any residue that might be in the administrator's hands; and as to the next of kin, he prayed that they might be decreed to pay the balance of his debt, in consideration of their being in possession of the estate of their intestate. The distributees pleaded that in the settlement of the administration accounts of the estate of William Farmer, deceased, the administrator had been credited with the amount of the complainant's judgment at law against him, and that the residue only of their intestate's estate had been distributed among them (costs and charges deducted). And some of the distributees in their answer insisted that by the finding of the jury it appeared that when complainant recovered his judgment against the administrator there were assets sufficient in the administrator's hands to discharge said judgment, and that he gave security for his administration; that complainant's remedy, if he were entitled to any, was against the administrator and his securities. The Court of Equity for Johnston County, upon hearing the bill, answers, pleas, etc., decreed that the defendants should pay to complainant £281 19s. 4d., and that each party should pay his own costs. From this decree the defendants appealed to this Court. D. Cameron and Gaslon for complainant. Savwell and Browne for defendants. Hall, J. It may be well doubted whether the complainant has any remedy to recover this debt, since the execution has been returned "Satisfied." When property is sold under execution, whether real or personal, there is no warranty of title, either express or implied, attached to such sale, independent of Laws 1807, ch. 4. There is no compulsion on any one to purchase; but he who pleases to purchase incurs the risk of purchasing a bad title. If a stranger had purchased in the present instance, could he have recovered his money back upon finding he had purchased a bad title? And can it make any difference that the purchaser was the plaintiff in the execution? He had the liberty of bidding, but when he purchased he stood in the same situation with a stranger. He was creditor and purchaser both; in which of these capacities does he come into the court? As creditor, it is said. Suppose, then, that a stranger had purchased and paid the money through the sheriff to the plaintiff: the plaintiff would have no claim either at law or in equity; his claim would be satisfied, and he would rest satisfied, but the purchaser would not; and it is in that character that the complainant now stands in this Court. It seems to be an established principle that no man shall be compelled to become the debtor of another, except in cases of bills of exchange, paid when protested, for the honor of the drawer (1 Term, 20; 1 H. Bl., 83, 91; 3 Esp., 112), and cases of implied assumpsits do not contradict the rule. If one person pay the debt of another, merely because he chooses to do it, he cannot recover the amount so paid from the debtor. Nor is the case different if he voluntarily purchase a had title at a sheriff's sale, and thereby discharges it. The law in such case will not imply an assumpsit. There is no privity of contract between the parties. For these reasons the complainant is not entitled to the relief he asks. But if complainant be entitled to recover, who ought to pay the debt? In common cases the administrator ought to pay; but if he has delivered the property over to the next of kin, or if, as in the present case, he has delivered over part and wasted part, so as not to be able to pay the debt, the property may be followed into the hands of the next of kin, although the administrator has wasted more of the assets than the debts amount to. But in the present case the administrator stands upon very different grounds. He had a demand at law, and at law that demand has been satisfied, and he comes into the court to ask a favor. The equity of his request must be examined, as well as the equity of the defendant's objections. What are they? They state that this amount was paid to or left in the hands of the administrator, for the purpose of paying this debt. As to them, then, it is paid; the administrator was the proper person to receive it from them, and they have fully paid it, although the complainant never received it. We are then led to inquire who was in fault? and the answer is, the administrator, and he is insolvent. The next question is, Ought not his securities to pay it? They undertook for his faithful administration of the estate, in which he has failed, and of course it would seem that they are answerable. But it is said that they are exonerated at law, and that equity will exonerate them. Admitting that to be the case, it has been brought about by the conduct of the complainant himself, by bidding at the sheriff's sale, and having his execution returned "Satisfied." And if he by that means has put it out of his power to receive his debt from them, others ought not to be liable on that account. The defendants have equal equity with the complainant, and this Court can give no relief. The bill must be dismissed. 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. File at: http://files.usgwarchives.net/nc/johnston/court/atkinson573gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 9.0 Kb