Opinion · Supreme Court of North Carolina

Jones v. . Zollicoffer

4 N.C. 645

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1817-07-05
Topic: general

* The original papers in this cause, having been by some accident mislaid, did not come into the hands of the Reporter until within a few days past. To extract from a voluminous mass of chancery forms the material parts of the cause, and to mould them into a shape fit for publication has been a work of much labor, but one upon which more might have been properly bestowed had time permitted. The aim has been to seize the mean between obscure brevity and needless prolixity. That part of the negroes so bequeathed are in the possession of Zollicoffer, who pretends a title to them under a purchase, made either by himself or his father from Sarah, the widow, who alone took upon herself the burden of executrix, and who, before the period of such purchase, had paid all the debts due from the testator's estate, and had elected to hold the negroes as legatee, and had actually so held them for many years. The said Zollicoffer was acquainted with all the circumstances, and purchased from the widow as legatee only, and paid a consideration proportionate only to her life estate, and applied the money paid, or knew of its application, to the discharge of the widow's proper debts.

Citator

UpLaw has not yet analyzed Jones v. . Zollicoffer. The absence of a flag is not a finding that it is good law.

Cited by: 4 opinions

JONESv. ZOLLICOFFER,4 N.C. 645(1817)

WILLIAM JONES AND OTHERSv. ZOLLICOFFER. — TERM, 212.^fn*

Supreme Court of North Carolina

(July Term, 1817.)

1. A court of equity will not compel a purchaser for a valuable consideration, without notice, to part with any legal advantage he has over his adversary, although he may have obtained it accidentally or improperly; nor will it compel him to discover his title, or title deeds or boundaries, nor to surrender title deeds, nor suffer testimony to be perpetrated against him, because a court of law would do none of these things. But where nothing is asked of him but what a court of law would compel him to perform, equity affords him no protection, and does not allow him to withhold the property of another.

2. When a bill is filed by one who has the legal title, but under such circumstances that he cannot be completely redressed at law, it is no defense for the purchaser to plead that he purchased for a valuable consideration without notice. Such plea will only protect the honest purchaser after he has got the legal title.Page 464

3. It is the province of a jury in an equity suit to try only such disputedfactsas the parties by the bill and answer submit to them; but to find that a sale is justifiable is aconclusion of law, not submitted to them.

5. [4.] A junior equity can in no case prevail over an older one, unless it has power as executrix over the property bequeathed thenceforward ceases; her assent operates for the benefit of the ulterior remaindermen, and converts their equitable into a legal estate.

5. A younger equity can in no case prevail over an older one, but where it has also the law; for the rule is that where there is equity on both sides, the law shall prevail.

THE complainants, claiming as legatees and next of kin to William Jones, instituted a suit in equity against Zollicoffer, in which the bill stated that William Jones died in 1758, having first made his will, (646) which, amongst others, contained the following clause: "I give to my wife, Sarah Jones, the use of a negro fellow named Ben, another named Sam, and three wenches named Sal, Nan, Doll, as also my stock of goods, chattels, etc., and parts and parcels of my estate during her life, then to be equally divided among my children, by my executors." He appointed his wife and his son William his executors.

That part of the negroes so bequeathed are in the possession of Zollicoffer, who pretends a title to them under a purchase, made either by himself or his father from Sarah, the widow, who alone took upon herself the burden of executrix, and who, before the period of such purchase, had paid all the debts due from the testator's estate, and had elected to hold the negroes as legatee, and had actually so held them for many years.

The said Zollicoffer was acquainted with all the circumstances, and purchased from the widow as legatee only, and paid a consideration proportionate only to her life estate, and applied the money paid, or knew of its application, to the discharge of the widow's proper debts. The bill then prays a discovery of the names and increase of the negroes, and of the profits received from their labor, and a decree for the respective shares of the complainants.

The answer of Zollicoffer admits the purchase of a negro named Beck from the widow and three of the legatees, who assured him that they could or would make a good title to her; that he has understood that the girl was sold to pay a debt contracted for the support of the family.April Term, 1798. To this answer a replication was filed, and the court directed five issues to be made up, the only one of which necessary to be here stated was as follows: "Whether the sale to Zollicoffer was for the purpose of paying the debts and expenses of the testator's estate, or the necessary, expenses towards maintaining the children, orPage 465young negroes belonging to the testator, or for the benefit of the widow only. And whether the said Zollicoffer had notice of the equitable claim set forth in the bill, when he purchased." (647)October Term, 1800. On this issue the jury found that the sale of the negro Beck was justifiable, and for a valuable consideration, and that the defendant purchased without notice.

JOHNSTON, J.

The court then decreed that the complainants should pay to Zollicoffer his costs.October Term, 1805. The complainants afterwards filed a bill of review, in which they made the following assignment of errors, viz.:

1. No such issue as that above stated ought to have been submitted to the jury, it being perfectly immaterial as to the claim of the complainants whether the said negro Beck was sold by the widow who held her as a legatee for life for any of the purposes mentioned in the said issue or not.

2. Such issue ought not to have embraced any other causes for the sale than that expressed in the answer, viz., "to pay a debt contracted for the support of the family," which could not, were it true, enable the widow, a legatee for life only, to sell the said negro absolutely and forever, and so as to divest the property of the complainants.

3. The jury have not specified the cause or purpose for which the said sale was made, nor have they said it was for any of the purposes contained in the said issue.

4. That the court should have pronounced a decree for the complainants against the said Zollicoffer for all the descendants of Beck, which were or had been in his possession, or in other words, for the complainant's shares of all the said negroes.October Term, 1811. To this bill of review Zollicoffer demurred, and upon argument the opinion of the Court was pronounced by

HENDERSON, J.

It is a maxim in equity that where equity is equal, the law shall prevail. Under a mistaken application of this principle the original bill was dismissed as to the defendant Zollicoffer. To reverse that decree is the object of the present bill. (648)

A purchaser for a valuable consideration without notice, has an equity equal to that of any one; and if he has any advantage at law over his adversary, a court of equity will not deprive him of it, although he may have obtained it accidentally, or even improperly. It will notPage 466compel him to discover his title, or his title deeds, the boundaries of his lands, to surrender up title deeds, although improperly obtained, or suffer testimony to be perpetrated against him, because a court of law would do none of these things. But when he is not called on to surrender any of these advantages, when nothing is asked of him but what a court of law would compel him to perform, it affords him no protection; and when he withholds from another his property, he shall be compelled to restore it, the court taking care that he shall not be deprived of any of his legal advantages.Collett v. De Gols, Cases Temp. Talbot, 65, so much relied on by the defendant's counsel, fully supports this opinion. A similar plea to the present protected Ward and his trustee, as to all the estates of the bankrupt, which the bankrupt had mortgaged prior to the bankruptcy, and which by assignment had come to Ward or to his trustee before the commission was sued out; for as to them Ward had a legal advantage; he had the legal estate, and nothing but equities of redemption remained in the bankrupt at the time of his bankruptcy to forfeit by the act of bankruptcy for the benefit of his creditors; and when the assignee came into a court of equity to redeem the mortgaged estates, Ward's equity being equal to his, and he having the estate at law, it was decreed that the assignee should redeem, upon paying not only the money for which the estates were originally mortgaged, but also the money paid by Ward to the bankrupt for a release of the equities of redemption, although the equities were purchased after the act of bankruptcy committed, and when the bankrupt had nothing which he could sell. For Ward had the legal estate. An equity of redemption (649) is unknown at law, and cannot be enforced in the courts of law. And but for the interposition of a court of equity the mortgaged estate, after default in the mortgagor, would remain forever in the mortgagee, Ward's equity, therefore, protected him in a court of equity, as he would have been protected in a court of law; and the truth of his plea was ordered to be ascertained.

But as to that property derived immediately from the bankrupt after his bankruptcy, and before commission sued out, the court directed Ward to account, regardless of the truth or falsity of his plea; for as to that he had no legal advantage.

It is deemed unnecessary to examine further the cases cited in the argument, or to notice some expressions of the chancellors, such as that a court of equity has no jurisdiction against a purchaser for a valuable consideration without notice, and others of like import; for in all the cases the complainants were endeavoring to obtain something which the law would not grant, and the expressions of the chancellors were used in reference to such cases, and if not, wereextra-judicial. It is unnecessaryPage 467to decide whether the allegations of the parties warranted the making up of the fifth issue, to wit, whether the defendant was a purchaser for a valuable consideration without notice. But it is very questionable whether the defendant had made in his plea or answer (call it which you will) any such allegation.

It is also objected that there has not been a final decree passed and enrolled in this cause. It is true, those formalities which are used in England have not been complied with. But there is sufficient for this Court to perceive that there was a decree pronounced in favor of Zollicoffer. The issue was made up under the direction of the court; it was found in Zollicoffer's favor; it was ordered that the complainants should pay him his costs; an interlocutory order was made as to the other defendants, and the cause progressed as to them, and rested as to him. According to the loose manner in which the decrees of the courts are taken, we must, in justice to the parties, consider this as sufficient evidence of a decree having been pronounced.

It is therefore ordered and decreed that the decree dismissing (650) the bill as to Zollicoffer be reversed.

Upon the reversal of the original decree, Zollicoffer filed a petition for rehearing.

Browne for petitioner.

January Term, 1817. The opinion of the Court was delivered by

SEAWELL, J.

The complainants in the original bill charge that William Jones, being possessed of the original stock of the slaves in question, devised the use of them to his wife for life, and directed by his will that after his wife's death the slaves should be divided by his executors amongst all his children, and made the wife and his son William (one of the complainants) his executors. It further charges that the wife died in 1793, and that the defendant has possession of the slaves under some purchase for a small price, and with full notice of the children's claim, and that the plaintiffs represent the children. The bill also charges that the wife elected to hold as legatee, and that all the debts had been paid before the sale of the slaves, and prays that the slaves may be surrendered and the defendant decreed to account for their profits.

The defendant, by his answer, in substance says that he purchased from Sarah Jones (the widow), Brittain, Jones and Elizabeth, two of the children, and William Perry, who it seems married one of the daughters of the testator; that the vendors assured him they could or would make a good title, and that he did not pretend to (658)Page 468be a judge of its goodness, but bought upon their assurance; that he understood the sale was made for the support of the family; that Elizabeth was at that time of full age.

Upon this bill and answer a jury is called upon to try the truth of the matters in dispute between the parties; and these matters in dispute can only be found by comparing the bill and answer, and not by any issues otherwise made up. And it may be here remarked that everything charged, which is not admitted by the answer, must first be found by a jury before the court can act upon it; for, according to the constitution of our courts, the jury is to decide all matters of fact. The jury, in this case, found that the sale was "justifiable," and that defendant purchased without notice and for a valuable consideration: Upon which the complainant's bill was dismissed. Now, it seems clear to us all that it was the province of the jury to find only facts, or rather what the parties, by the bill and answer, submitted to them, that their finding the sale "justifiable" was a conclusion not submitted to them, either by the bill and answer or, indeed, by the issues made up by the court; and we are free to declare that if the wifedid electto take as legatee, as charged in the bill, her power thereafter as executrix ceased, her assent operating for the benefit of those in remainder; the legatees thereby acquiring a legal title to that which before was an equitable interest. The effect, then, would be that the wife could only legally or equitably convey to the defendant what she herself had — a life estate. And as to the effect of a purchase by an innocent man for a valuable consideration in such a case, we also hold that the rule in equity is clear; as between mere equitable claimants, or, in other words, those who only have equitable titles, thatqui prior est tempore potior est jure;and that a younger equity can in no case prevail against an older, but (659) where it hasalso the law;for the maxim then is, that there being equity onbothsides, the law shall prevail. In a controversy between such parties, the legal title has been emphatically called theTabulanaufragis, upon which either might support himself. When it is said that either may support himself by the legal title it is meant that equity will nottake awaya legal defense from such innocent purchaser. When an equitable owner of property calls upon the legal owner for thetitle, which has been called the shadow, a court of equity regards thesubstance, and will, in general, compel him to surrender it; for it would be contrary to the first principles of justice, that he who has only aformalpaper title, should without any merits, hold it and enjoy the benefit against him who has honestly paid his money for it. But when a court of equity is called upon to take away that right, which thelawwould sustain, ifPage 469this legal owner can himself show equity, having the law and equity also, a court of equity will refuse its interposition, and, in such case, leave it to the law to decide.

Whenever, therefore, any innocent, honest purchaser hasarmedhimself with thelaw, though his equity might be postponed, a court of equity will not take away thedefense;but if it amount not to adefenseat law, the complainant in equity would be idly spending his money to obtain it. When a bill, therefore, is filed by one who has the legal title, but who comes into equity because he cannot becompletelyrelieved at law, it is no defense for the defendant to plead that he is an innocent purchaser for a valuable consideration without notice, because the complainant is not seeking todisarmhim at law, the defendant at best having but awoodensword, incapable of protecting him against the assault of a legal claimant. This point was expressly determined byLord ThurlowinWilliams v. Lawler, 3 Brown, 264, where he says it does not apply against one seeking alegalclaim, and is only a bar to anequitabletitle; and it is to no purpose to say that the case turned upon the claim of awidow, for that is not noticed by the lord chancellor. The counsel for the purchaser admitted that in the case of twoequities, want of notice could make no difference, for the oldest must prevail. (660) Courts of law afford a remedy where the plaintiff has atitleto the thing in question, either by adequate damages or the possession of the thing itself; courts of equity exercise no control over the property itself, but afford relief by acting on the person, wherever the complainant has a title and cannot completely assert it at law, or where he has no effectual title, but only arightto have one. The right to have a title follows the property as an incident, so long as it continues to be owned by those who purchased with notice of this equitable claim, or by those who gave no valuable consideration for it; but when purchased, and the legal titleactually passed, and for a valuable considerationpaid, before notice, then the incident is not dismembered, and such purchaser will stand in the shoes of his vendor. And it is the same if the conveyance was so defective that the legal title did not pass; for in such cases it remains as it would have done between two persons, both of whom had bargained for the same property, but neither had obtained the legal title — they would neither of them have more thanequities, and the rulequi prior esttemporemust necessarily prevail. So if a person purchases a paper not negotiable, he obtains only an equitable title, and the consequence is that the want of notice can make no difference. He is subject to all the equity of his vendor; and so the rule has always been, and does not arise from the form of action at law, for it was so held whilst courts of law respected equitable interests. But there are cases in whichPage 470it is not necessary to apply to courts of law for assistance, as in the case of a bond to make title, which, if assigned, the assignee in equity must do the same equity which the assignor ought to have done before he could obtain a title.

From this reasoning it seems to me conclusively to follow that it is thelegalrule which operates as the shield to the purchaser, and thatLord Thurlowwas right in his application of the rule. And, indeed, the books are full of cases where a younger purchaser, for a valuable consideration and without notice, has been permitted, after (661) discovery of an older purchaser, to buy a prior encumbrance, andtherebyprotect himself. Now, if the rule laid down in argument were true, that whenever an innocent purchaser, for valuable consideration and without notice, was attempted to be disturbed, such plea would ofitselfprotect him — in other words, that the honesty of his purchase should defend him — it is remarkable that in all the cases alluded to the honest purchaser was only protectedafterhe had got in thelegaltitle. The books, indeed, when speaking of those cases, say where equity is equal the law shall prevail, and that he who hath only an equitable title shall not prevail againstlawand equity. And they lay it down as established doctrine that abona fidepurchaser, without any knowledge of the defect of his title, may lawfully buy in every judgment or encumbrance, and though nothing be due upon it, yet if he can defend himselfat lawwith it, his adversary shall have no aid in equity to set them aside; for beingableto defend himself at law, equity will not disarm him.

The decree of reversal is confirmed.

NOTE. — Upon the first and last points, seeBell v. Beeman,7 N.C. 273;Henderson v. Hoke,21 N.C. 119. Upon the point of the executor's assent to a legacy for life operating in favor of the remaindermen, seeDunwoodie v. Carrington, ante, 355, and the cases referred to in the note.Cited: Burnett v. Roberts,15 N.C. 83;Ricks v. Williams,16 N.C. 11;Saunders v. Gatling,21 N.C. 94;Howell v. Howell,38 N.C. 526;Weeks v. Weeks,40 N.C. 119.

The original papers in this cause, having been by some accident mislaid, did not come into the hands of the Reporter until within a few days past. To extract from a voluminous mass of chancery forms the material parts of the cause, and to mould them into a shape fit for publication has been a work of much labor, but one upon which more might have been properly bestowed had time permitted. The aim has been to seize the mean between obscure brevity and needless prolixity. ↩