Opinion · Supreme Court of North Carolina

Jones v. . Zollicoffer

9 N.C. 623

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1823-12-05
Topic: general

How later courts describe this case

Henderson, Judge, delivered the opinion c? the Court: A Court of Equity will restrain a person in the capricious exercise of ills rights; for benevolence becomes a duty enforced by Courts of Justice, when its exercise is in no wise prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can get satisfaction only out of one of them, and they are both equally convenient and accessible to him who may get satisfaction out of either, and nothing but mere caprice governs him in making the selection, there Equity will restrain him to the fund not onerated by the claims of the other ; but if convenience, and not caprice, is his motive, the most that Equity does is to substitute the disappointed claimant to his rights. The first is rarely done; for it is matter of extreme delicacy to'restrain a person in the exercise of a legitimate right, in favour of one who has no cliutn upon him by contract, and whose only connection with him arises from being interested in the same common fund; yet whore there is a fraud, moral or Segal, or snore caprice, he will he restrained. The hitter, to wit, substitution, is very frequently done, and is the foundation of marshalling assets in favour of legaieos and simple contract creditors, and a
plies incases where there is neither fraud nor caprice^ it is scfíick at. that his fund has been exhausted by one who had a double means of satisfaction. The Defendants …

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JONESv. ZOLLICOFFER,9 N.C. 623(1823)

JONES AND OTHERS v. ZOLLICOFFER. — From Halifax.

Supreme Court of North Carolina

December Term, 1823.

1. A testator by his will gave to his wife the use of certain slaves for her life, and after her death the slaves were directed to be divided among testator's children; the wife and one of the testator's children were made executors; the wife took the property as legatee, and, for her own benefit, sold one of the slaves, and three of the children joined in the conveyance with her; the rest of the legatees filed a bill in 1794 against the purchaser under the widow, and the court dismissed the bill. In 1811, on a bill of review filed, the then Supreme Court reversed the decree dismissing the bill, and on a claim now set up by the purchaser to be substituted to the rights of his vendors to such share as they would be entitled to in the other parts of testator's estate, it wasHeld, that where one claimant has two funds, and another but one of them to which he can resort, then if a selection be made by him, having access to both, of that fund to which alone the other has access, and such selection be dictated bymere caprice, equity will restrain it, and confine the claimant to the fund not operated by the claims of the other; but ifconvenience, and not caprice, dictate the selection, the most that equity does is tosubstitute:and in the case stated, if the property were of such nature that value alone is to be regarded, so that the Court might see that fraud or caprice induced complainants to pursue the property in defendant's possession, the Court might interfere; but with slaves, towards whom an attachment may exist regardless of their real value, the case is different, and the Court will not interfere, because a person who had right in common with another to a parcel of slaves might be actuated by other motives than mere caprice or fraud, who refused to validate a sale made in severalty by his copartner of some favorite slaves.

2.Held further, that in this case the double fund was lost without any default of the complainants, and by a decree of a court of supreme jurisdiction, and, therefore, the Court would not presume that the complainants fraudulently abandoned that fund with an intent capriciously to pursue, by a bill of review, the slaves in the defendant's possession.

3.Held further, that the accumulated rights of defendant's vendors, on the death of some of the children of the father, the testator, inured to the benefit of the defendant, whether such children died before or since the sale to him.

IN 1794 the complainants as legatees and next of kin to (624) William Jones, who died in 1758, filed a bill against Zollicoffer and others, and set forth that by the will of W. Jones the use of certain slaves named therein was given to his wife, Sarah Jones, for life, and testator by his will directed that after his wife's death the slaves should be divided by his executors among his children, and made his wife and his son William (one of the complainants) executors; that the wife died in 1793, and that Zollicoffer had possession of some of the slaves under a purchase for a small price and with notice of the children'sPage 346claim; that the wife had elected to hold as legatee, and that all the debts had been paid before the sale to Zollicoffer. The bill prayed that the slaves might be surrendered, and defendant decreed to account for their profits.

Zollicoffer by his answer admitted the purchase of a negro named Beck from the widow, and from Brittain and Elizabeth Jones, two of the children, and from Perry, who married another of the children, who assured him that they could or would make good title to her.

A jury found on an issue submitted to them that Zollicoffer had purchased Beck for a valuable consideration without notice, and that the sale wasjustifiable. The bill as to Zollicoffer was then dismissed.

A bill of review was afterwards filed, and in October, 1811, the then Supreme Court reversed the decree, dismissing the bill as to Zollicoffer. N.C. Term, 212. At the last term of this Court, the cause being here pending, the Court ordered certain issues to be submitted to a jury, and they found that at the time of the sale to Zollicoffer Sarah Jones, the widow, held the property as legatee and not as executrix, and that she sold the negro Beck for her own benefit. Whereupon the Court referred it to the clerk and master to take an account of the number of the negroes mentioned in the bill, and their increase, their value, hire, expense of rearing, and other expenditures relative to the (625) said slaves, together with the proportionate shares of the respective claimants.

And at this term the clerk and master reported that George Zollicoffer obtained possession of Beck in 1774 by a conveyance from Sarah Jones, Brittain Jones, William Perry, and Elizabeth Jones, and that at his death in 1815 he had her and her increase in his possession. That the descendants of Beck were thirty-five in number, of whom, at the time of taking the account, William E. Webb, administrator of George Zollicoffer, had in possession eighteen, two had been sold, and the residue, fifteen, were in the possession of James Zollicoffer, who claimed them under a gift from his father, George, made some time after 28 June, 1807. The value of the negroes and the profits of their hire were reported pursuant to order.

The clerk further reported the respective shares of the complainants to be as follows: The complainants in the original bill were William Jones, James Winters (a purchaser from Simon Jones, one of the children of W. Jones the elder), James Carstaphen (a purchaser from Jones Nichols, issue of Winnie, another of the children of W. Jones the elder), and Richard Richards, who intermarried with Elizabeth Jones.Page 347

The defendants were Brittain Jones, Jeremiah Stephens, administrator of Simon Jones, George Zollicoffer, William Perry, and Sylvia, his wife. The complainants in the bill of review were William Jones, John Purnell, administrator ofJames Winters, and James Carstaphen. Since the cause was transmitted to this Court, John Purnell, administrator ofWilliam Jones,Henry Jones, Brittain Jones, andAmey Westcoat(all of whom were children of W. Jones the elder), was made a complainant.

George Zollicoffer's administrator, William E. Webb, is the defendant.

William Jones died in 1758, leaving the following children:

1.William, who is dead and left issue, (626)William. Sarah, who intermarried with Jones Nichols, both dead, leaving no issue.Winnie, who intermarried with Samuel Nichols, both dead, leaving an only child, Jones Nichols, who sold to James Carstaphen.

2.Brittain, who is dead; before his death he conveyed his part of Beck, under his father's will, to George Zollicoffer.

3.Simon, who is dead; he conveyed his interest in his father's estate to James Winters.

4.Henry, who is dead without issue. John Purnell is his administrator.

5.Amey, who intermarried with William Westcoat, both dead without leaving issue. John Purnell is her administrator.

6.Silvia, who intermarried with William Perry, both she and her husband alive. They conveyed Beck to G. Zollicoffer.

7.Elizabeth, who intermarried with Richard Richards. She died, her husband is living; no administration is granted on her estate.

From this statement the clerk and master reported each child of W. Jones the elder, or the lawful representative of such child, entitled to one-seventh; and that G. Zollicoffer, by the conveyance to him, was entitled to two-sevenths. What effect the transfer made by Brittain Jones, Elizabeth Jones, and William Perry and wife to Zollicoffer had upon the interest to which they might be entitled in the increase of Beck as next of kin to their deceased brothers and sisters, and whether by the conveyance they were estopped from so claiming was submitted by the clerk and master to the court, with a report in the alternative stating their shares if so permitted to claim, and if not.

To this reportRuffinfiled exceptions, among others the following, viz.:

That the clerk had not taken or reported any account of any of the slaves mentioned in the bill except Beck and her increase, although directed to take an account ofallmentioned in the bill.Page 348

That the clerk had reported George Zollicoffer to be entitled to only two-sevenths of the negro Beck and increase, whereas he is (627) entitled to three-sevenths thereof, and also to such further share as will be equal to the value of the shares which Brittain Jones, William Perry, and Elizabeth Jones had in the other parts of the testator's estate by substitution to their rights thereto so as to make good, as far as the said other parts will extend, the sale by them of the slave Beck to said George.

And on this day the cause came on to be heard on the exceptions.

Ruffin in support of the exceptions.Gaston contra.

(642) HENDERSON, J.

A court of equity will restrain a person in thecapriciousexercise of his rights, for benevolence becomes adutyenforced by courts of justice, when its exercise is in no wise prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can get satisfaction only out of one of them, and they are both equally convenient and accessible to him who may get satisfaction out of either, and nothing butmere capricegoverns him in making the selection, there equity will restrain him to the fund not operated by the claims of the other; but ifconvenienceand notcapriceis his motive, the most that equity does is tosubstitutethe disappointed claimant to his rights. The first is rarely done, for it is matter of extreme delicacy to restrain a person in the exercise of a legitimate right, in favor of one who has no claim upon him by contract, and whose only connection with him arises from being interested in the same common fund; yet where there is a fraud, moral or legal, or merecaprice, he will be restrained. The latter, to wit, substitution, is very frequently done, and is the foundation of marshaling assets in favor of legatees and simple contract creditors, and applies in cases where there is neither fraud norcaprice;it is sufficient that his fund has been exhausted by one who had a double means of satisfaction. The defendants call upon us, in this case, to restrain the complainants from interfering with Beck and her issue, and pray that (643) they may be turned over to the other slaves and their issue, which belonged to William Jones, the elder, so far as the rights of his vendors extended in said residue, they having sold one of the common stock or fund to him in severalty. And were it money or a flock of sheep or anything of the like kind, where value alone is to be regarded, and one fund is as accessible to the complainants as the other, so that the court couldPage 349perceive that merecapriceorfraudinduced the complainants to pursue the part in defendants' possession, the court might exercise the very delicate power before mentioned; but towards property of this kind it is far different. It is well known, as to slaves, we have our partialities and antipathies, regardless of their real value, and which may arise from feelings very different from those that debase the human heart; and a person who had right in common with another to a parcel of slaves might be actuated by other motives than merecapriceorfraudwho refused to validate a sale made in severalty by his copartner of some favorite slaves. He might well say to the purchaser, Look yourself to the title of your vendor to the remaining slaves for compensation; it is sufficient that you should stand in his place and be substituted to his rights.

But there is another and perhaps stronger objection to the request of the defendant. This cause came on to be heard more than twenty years ago, and as to this question, presented the same aspect then that it does at present. With a full view of the case, the court, after dismissing the bill as to Zollicoffer, directed the remaining slaves to be divided among the representatives of William Jones, including Zollicoffer's vendors, that is, as if the negro Beck had never been. This double fund was therefore lost without any default of the complainants, and by a decree of a Court at that time of Supreme jurisdiction, and it cannot be presumed that the complainants fraudulently and voluntarily abandoned that fund as a means of satisfaction, with an intent capriciously to (544) pursue by a bill of review the negroes in Zollicoffer's possession; and therefore this double fund, which they once might have had for their satisfaction, has been lost, and that not by their default or consent, which cuts up the very grounds of the defendants' application. The exception must be overruled.

As to the advice asked by the master upon the accumulated rights of Zollicoffer's vendors on the death of some of the children of William Jones without issue, I conceive that such accumulation inures to the benefit of Zollicoffer, whether such children died before or since the sale to him, for certainly they can claim nothing in Beck or her issue, either by their then title or one subsequently acquired, they having sold her to Zollicoffer in severalty.

PER CURIAM. Judgment accordingly.Cited: Weeks v. Weeks,40 N.C. 119.Page 350