Opinion · Supreme Court of North Carolina

Beaty v. . Gingles

53 N.C. 302

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1860-12-05
Topic: bankruptcy

Battle, J. "Where an executor sues upon the possession of his testator, he must sue as executor, because he must make proferí, in his declaration, of his letters testamentary, but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, however, he sue “as executor” when the action is brought upon his own possession, the words “as executor” are considered as mere surplusage ; Hornsey v. Dimocke, Ventris 119 ; Com. Dig.

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Cited by: 5 opinions

BEATYv. GINGLES,53 N.C. 302(1860)

RUFUS J. BEATY v. CHARLOTTE GINGLES ET AL., EXECUTORS.

Supreme Court of North Carolina

(December Term, 1860.)

An action against a person as "executor" for an act done, or a contract made by him after the death of his testator, cannot be sustained, and the words "as executor" rejected as surplusage; as may be done where the action is for the party on his own possession, and these words are improperly inserted.

CASE tried beforeDick, J., at Fall Term, 1860, of GASTON.

The plaintiff declared for a deceit and false warranty in the sale of a slave against the defendants as executors of Edley Gingles. The proof was that after the defendants qualified as executors of said Gingles, that they offered the slave in question at public sale, and that plaintiff became the purchaser. He also gave evidence of the unsoundness of said negro, and that the defendants were aware (303) of it at the time of the sale.

Defendants' counsel asked his Honor to charge the jury that plaintiff could not recover against them in their representative capacity, but that if they had practiced a fraud or deceit on the plaintiff in the sale of the said negro, they were personally responsible for it, and that the estate of their intestate could not be charged therewith. His Honor refused so to charge, but told the jury that if they believed from the testimony that the negro was unsound at the time of the sale, and that defendants were aware of it, and did not disclose it to the purchaser at that time, the action was well brought, and the plaintiff was entitled to recover.

Verdict and judgment for plaintiff. Appeal by defendants.

No counsel for plaintiff.L. E. Thompson for defendants.Page 232

BATTLE, J.

Where an executor sues upon the possession of his testator, he must sue as executor, because he must make profert [proffer], in his declaration, of his letters testamentary; but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, however, he sue "as executor" when the action is brought upon his own possession, the words "as executor" are considered as mere surplusage.Hornsey v. Dimocke, Ventris, 119; Com. Dig. Pleader (I. D. I.);Cotten v. Davis,48 N.C. 355. But an action against a person "as executor" for an act done or a contract made by him after the death of his testator cannot be sustained; for in such an action he must be sued in his individual and not in his representative capacity, and the words "as executor" cannot be rejected as surplusage. This is well settled byHailey v. Wheeler,49 N.C. 159, where the subject is fully discussed; and that case has since been referred to and confirmed (304) by the very recent one ofMcKay v. Royal,52 N.C. 426.

PER CURIAM.Venire de novo.Cited: Kessler v. Hall,64 N.C. 61;Kerchner v. McRae,80 N.C. 223;Banking Co. v. Morehead,116 N.C. 412;s. c.,122 N.C. 323;Hall v. R.R.,146 N.C. 347.