Person County NcArchives Court.....John Harris, Thomas R. Stephens Vs 1848
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Source: Nc Reports
Written: 1848

Thomas R. Stephens vs. John Harris & Al, 1848

Though a voluntary bond is good between the parties, in this Court as well as 
at law, yet, in the course of administration, it is to be postponed to any 
just debts, though due by simple contract.

Equity regards it as a fraud, to give a voluntary security, which, by its 
form, gets a preference to a just debt, and, therefore, interposes to prevent 
the preference, in whatever way it may become necessary to effect that end. So 
that, if the voluntary obligee receive the money from the executor, the real 
creditor may file his bill to be satisfied out of the money, if he cannot 
otherwise get his debt, and if the creditor has the fund in his possession, he 
may retain it in satisfaction.

Cause removed from the Court of Equity of Person County, at the Fall Term 1848.

The plaintiff alleges, that he is the illegitimate child of Anderson Harris: 
and that his father had lent to the defendant, W. J. Hamlett, the sum of 
$838.94, and, being disposed to make a provision for him, took from the said 
Hamlett a bond, made payable to the plaintiff for that sum, and delivered it 
to his mother, Joan Stephens, for his use and benefit. He states, that, 
subsequently, it was by his mother delivered to his father for collection, who 
lost it, and shortly thereafter died; and that John Harris, his father, 
administered on his estate, and took from W. J. Hamlett a bond for the money 
so lent him in his own name, as such administrator, and claims to hold it as 
assets of the estate of Anderson Harris.

The defendant, John Harris, denies, that he has any knowledge of the making of 
the bond of W. J. Hamlett payable to the plaintiff, and, if it was made, he 
denies it was ever delivered to the plaintiff, or to any one for him. He 
alleges the facts to be, as he had heard, that Anderson Harris was convicted 
in the Superior Court of Person County for an offence, for which the Court 
sentenced him to be imprisoned three months and pay a fine of $300; and that 
to evade the payment of the fine, he made the loan spoken of to Hamlett, and 
took the bond payable as stated. He further states, that at the time the loan 
was made to Hamlett and the bond taken, Anderson was very largely indebted to 
him, for rents of lands and money lent him, to an amount much larger than the 
bond in controversy, and that, after paying the just debts of the intestate, 
Anderson, there will not be assets to an amount exceeding $175.

Gilliam for the plaintiff
E. G. Reade and Norwood for the defendants

[NC Supreme Court]
Nash, J. We are satisfied from the evidence, that the bond made by W. J. 
Hamlett to the plaintiff was delivered to his mother for him, and was intended 
to enable Anderson Harris to evade the payment of the fine, imposed upon him 
by the Court on his conviction, and that it was, therefore, fraudulent and 
void as to the State; but the fine and the costs of the prosecution have been 
paid, and the state is not making any complaint. But, although the debt due 
the State is paid, still, as the bond, or the money secured thereby, was a 
gift by Anderson Harris to the plaintiff, it is void as to the creditors of 
the donor; yet it is binding on Harris, and on the defendants, who stand in 
his shoes. The defendant Hamlett is also bound to make it good. At the time he 
gave the second bond, to John Harris, the administrator of Anderson Harris, he 
knew the original bond was the property of the plaintiff. John Harris, 
however, in his answer alleges, that his son Anderson was, at the time of the 
gift of the Hamlett bond to the plaintiff, largely indebted to him and that 
those debts are unpaid; and that there are not assets sufficient to pay what 
was due him, over and above the Hamlett bond.

There must be a reference to the master to take an account of the assets of 
Anderson Harris, which came to the hands of his administrator, John Harris, 
the amount of the debts due from the estate, and particularly the amount of 
the debt due from the estate to John Harris, and how due.

Ruffin, C. J. The plaintiff would be entitled to recover from the defendant 
Hamlett, upon the single ground of the bond, which he gave payable to the 
plaintiff, and the loss of it, as admitted in the answer; and, if he had sued 
him by himself, it is not seen how that defendant could have raised any 
question as to the rights of the creditors of Anderson Harris. But, as the two 
defendants came to an arrangement between themselves, whereby the fund to 
which the plaintiff, as obligee in the bond, is entitled, has been placed in 
the hands of the defendant Harris, and the plaintiff has framed his bill upon 
the idea of following that fund, that defendant must be allowed to assert any 
claim upon the fund in this suit, which he might do in a bill by him against 
the plaintiff, if he had hi8mself received the money from the obligor, 
Hamlett. Now, although a voluntary bond is good, between parties, in this 
Court as well as at law; yet it has been long settled, that in the course of 
administration it is to be postponed to any just debts, though due by simple 
contract. 

Equity regards it as a fraud to give a voluntary security, which by its form 
gets a preference to a just debt, and, therefore, interposes to prevent the 
preference. It follows, that it will interpose in whatever way it may become 
necessary to effect that end; and, therefore, that, if the voluntary obligee 
receive the money from the executor, the real creditor may file his bill to be 
satisfied out of the money, if he cannot otherwise get his debt. The same 
reason applies with equal force to the voluntary assignment of an obligation 
or a debt, as to a debtor's own voluntary obligation.

Therefore, the defendant Harris, as a creditor of Anderson Harris, might 
maintain a suit against the present plaintiff for satisfaction out of is 
debtor's bounty, if it were in the plaintiff's hands. And it is the necessary 
consequence, that, having the funds in his own hands, he has the right to 
retain out of it what will pay his demand, if there be no other assets. The 
principle of law involved in the case seems to be simple and clear enough; and 
the doubt, probably is, whether the sums now demanded as debts from the son 
were not advancements to him. That question, however, will arise, when it is 
known, what debts the son owed the father, and what assets the latter has, as 
administrator of the son, and how the same have been administered; as to all 
which there must be a reference to make the usual enquiries.

Per Curiam
Decree accordingly

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