Rollins v. Ebbs.

49 S.E. 341, 137 N.C. 355, 1904 N.C. LEXIS 369

Opinions

CLARK, C. J., and DOUGLAS, J., dissenting. This action was brought by the plaintiffs on a guardian's bond. The defendants alleged that the amount of the penalty was not in the paperwriting at the time they signed it, and this was the principal matter in controversy. Much testimony was introduced upon that question. Issues were submitted to the jury, which, with their answers, were as follows:

1. "Did the defendants, I. N. Ebbs, M. L. Duckett, D. P. Plemmons, Joe M. Rector, and Jasper Ebbs, make and deliver their bond, in writing, to the State of North Carolina, for the benefit of James Blaine House, as alleged in paragraph 3 of the complaint? Answer: `Yes.'

2. "Did the defendant F. C. Ebbs, as guardian of James Blaine House, receive the sum of $7,000, property of his ward, James Blaine House, as alleged in paragraph 4 of the complaint? Answer: `Yes.'

3. "Did the defendant F. C. Ebbs, as guardian of James Blaine House, in violation of and in breach of said bond, use and appropriate to his own use the sum of $4,666.66 2-3 of his ward's money, as alleged in paragraph 6 of the complaint? Answer: `Yes.'

(356) 4. "In what sum, if any, is the plaintiff or the relators damaged because of the said breach of the said bond? Answer: `In the sum of $4,666.66 2-3, with compound interest from 8 March, 1900, until paid.'

5. "Was the paper-writing or bond described in and mentioned in paragraph 3 of the complaint incomplete when delivered to the clerk of the Superior Court of Madison County, in that it contained no penalty, and in that the space where the penalty should have been written was left blank, as alleged in the first paragraph of the further defense contained in the answer? Answer: `No.'

6. "Was the penalty of $13,000 left out of the said bond or paperwriting described and mentioned in paragraph 3 of the said complaint, and the space wherein the penalty should have been written left blank, because of the mutual mistake and inadvertence of the parties thereto, as alleged in the reply of the plaintiff? Answer: ............

7. "Was the penalty, $13,000, left out of said bond or paper-writing described and mentioned in paragraph 3 of the said complaint because of the mistake or inadvertence of the clerk of the Superior Court of Madison County, as alleged in the reply of the plaintiff? Answer: `No.'

8. "Was the penalty of $13,000 left out of said bond or paper-writing mentioned and described in paragraph 3 of the said complaint, and the space wherein the penalty should have been written left blank by reason of the fraud of the makers of said bond, perpetrated and practiced upon the clerk of the Superior Court of Madison County, as alleged in the reply of the plaintiff? Answer: .............

9. "Was it the purpose and intention of the defendants, at the time of signing the paper-writing introduced in evidence, that the same should be used and filed as a guardian bond by F. C. Ebbs, as guardian of James Blaine House? Answer: `Yes.'

10. "Was the penalty inserted in the paper-writing purporting (357) to be a bond at the time Jasper Ebbs signed the same? Answer: `No.'

11. "Was the penalty, $13,000, inserted in the paper-writing purporting to be a bond at the time the defendant Plemmons signed the same? Answer: `No.'

12. "Was the penalty, $13,000, inserted in the paper-writing at the time M. L. Duckett signed the same? Answer: `No.'

13. "Have the defendants Jasper Ebbs, M. L. Duckett, D. P. Plemmons, or either of them, since the signing of the paper-writing or bond, authorized any one to insert the penalty, $13,000, in said bond? Answer: `No.'

The defendants in apt time objected to issues numbered 1, 6, 8, and 9. Objection overruled. Defendants moved for a new trial upon exceptions. Motion overruled. Judgment for plaintiff. Defendants excepted and appealed. After stating the facts: It is clear what the court meant when it submitted the 10th, 11th, and 12th issues to the jury, and it is equally apparent what the jury intended to find by the answer to those issues. The inquiry manifestly was whether the amount of the penalty had been written in the bond before the time that the sureties, Ebbs, Duckett, and Plemmons, signed it, and not merely whether it was inserted at that particular time. Such an inquiry as the one last mentioned would, to say the least of it, have been immaterial. The jury found that the amount was not in the bond at the time it was signed and that the sureties named in the issues had not authorized any one to insert the penalty.

Our opinion was, at first, that enough appeared in the record (358) to bring the case within the principle stated in Humphreys v.Finch, 97 N.C. 303, 2 Am. St., 293, but we are now satisfied that a correct interpretation of the verdict renders that case inapplicable. The jury, by the 10th, 11th, and 12th issues have found that the amount of the penalty was inserted after the paper-writing was signed by the sureties, and by the 13th issue they have found as a fact that Ebbs, Duckett, and Plemmons "had not authorized any one to insert the penalty, $13,000, in said bond." This, it seems to us, presents just such a case as was considered in Graham v. Holt, 25 N.C. 300, 40 Am. Dec., 408, in whichJustice Daniel uses this language: "A bond is the acknowledgment of a debt under seal, the debt being therein particularly specified. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound. Shep. Touch., 56; Com. Dig., Obligation A; Hurleston, 2. In New York Ex parte Therwin, 8 Cowen, 118, and some other of the American cases, the nisi prius decision before Lord Mansfield inTexira v. Evans, 1 Anst., 229, in nota, has been followed. That case was where a party executed a bond with blank spaces for the name and sum and sent an agent, without a power of attorney under seal, to raise money on it; the agent accordingly filled up the blanks with the sum and the obligee's name, and delivered the bond to him. On the plea of non estfactum the bond was considered well executed. But Texira v. Evans has been by this Court twice overruled as attempting to establish a distinction in the mode of executing deeds by attorney, where the object was to raise or secure money, and when it was to operate as a conveyance — the first, by a power of attorney not sealed, the other with a power of attorney under seal. The notion with us has always been — what we learned from Co. Lit., 52 (a), and the Touchstone, 57 — that he who executes a (359) deed as agent for another, be it for money or other property, must be armed with authority under seal. The insertion of the sum in the blank space was intended to consummate the deed; it was done withoutlegal authority, and the instrument is void as a bond," citing McKee v.Hicks, 13 N.C. 379; Davenport v. Sleight, 19 N.C. 381, 31 Am. Dec., 423. The same idea is also strongly expressed by Chief JusticeRuffin in Davenport v. Sleight, supra, as follows: "The ancient rule is certain that authority to make a deed cannot be verbally conferred, but must be created by an instrument of equal dignity. It is owned that there are modern cases in which it seems to have been relaxed with respect to bonds. This began with the case of Texira v. Evans, cited 1 Anst., 229, note, on which all the subsequent cases profess to be founded. The Court is not satisfied with the reasons assigned for those opinions, but entertains a strong impression that they lead to dangerous consequences."

In Cadell v. Allen, 99 N.C. 542, Justice Merrimon, referring to the principle as laid down in Graham v. Holt and Davenport v. Sleight, says: "The rule, as thus stated, is recognized in many cases, and must be treated as settled and of governing authority," citing Blacknall v. Parish,59 N.C. 70, 78 Am. Dec., 239, and other cases.

There has been no ratification. This Court cannot give its opinion or render judgment upon evidence merely. There must either be an admission of the facts in the pleadings or in some other form in the record, or the facts must be found by a jury. There is nothing admitted, or found by the jury, which shows that the defendants have, in any way known to the law of this State, assented to or ratified the insertion of the penalty in the bond.

If any respect is to be paid to our decisions in preference to those of other States, the findings of the jury upon the last four issues, if those issues stood alone, would entitle the appellants to a judgment. But the answers to the issues in this case, taken as a whole, are (360) themselves conflicting. The jury have found, in response to the first issue, that the defendants made and delivered their bond, in writing, to the State for the benefit of the principal's ward, and yet, in answer to subsequent issues, they have found that the amount of the penalty was not in the paper at the time of the signing by defendants, and that it was not put there afterwards by any authorized person. The insertion of the amount at or before the time of signing was necessary to constitute the paper a perfect instrument, a good bond, unless the amount was afterwards inserted by some one having authority to do so, or unless the signers themselves afterwards ratified what had been done to make the instrument complete and in the manner indicated by this Court in the cases already cited. "If an instrument with a seal to it," says Hall, J., "is not completely executed by signing, sealing, and delivering, it cannot become so by any act of an unauthorized agent. It would be dangerous if the law were otherwise." McKeev. Hicks, 13 N.C. 380. This was said with reference to the very kind of question we are now discussing, as an extract from the syllabus of the case will show: "A deed must be perfect in all respects before its delivery. Where a blank was left in a bond for money, to be filled up when the sum was ascertained, and after the delivery the blank was fairly filled up by a stranger: Held, that the instrument was void." Page 379. This was ruled to be the law, even when the alleged obligor had actually received the money on the faith of its being his valid bond. In that case this Court went still further and affirmed the judgment, notwithstanding a charge by which the jury were instructed that the defendant was not bound by the bond as his deed, "unless the person filling up the blank, on delivering the paper, had at the time of the delivery authority under the hand and seal of the defendant to do so." Page 380.

Humphreys v. Finch, 97 N.C. 303, as we have said, does not (361) apply. The decision is based upon the idea of an equitable estoppel, which cannot arise in this case, as the jury have found that no authority to insert the amount in the bond was given, which was not the fact in Humphrey v. Finch. That case might well have been decided upon the doctrine of agency.

This is not a question of the alteration of an instrument, but a question of authority to complete the instrument so as to make it binding, as is clearly stated in 2 Cyc., 159, and it is too plainly so to require any further discussion.

Nor do we think the fact that this is a statutory bond alters the case in favor of the plaintiff. If there is any difference in respect to the question under consideration between such a bond and an ordinary bond or deed, that difference in this particular case is rather favorable to the defendants. The Code, sec. 1574, requires that "a guardian, before letters of appointment are issued to him, must give a bond payable to the State with two or more sufficient sureties, to be acknowledged before and approved by the clerk of the Superior Court, and to be jointly and severally bound. The penalty in such a case must be double, at least, the value of all personal property and the rents and profits issuing from the real estate of the infant, which value is to be ascertained by the clerk of the Superior Court by the examination, on oath, of the applicant for guardianship or of any other person." It will be observed that the bond must be acknowledged before the clerk and approved by him, and the penalty must be double, at least, the value of the personal property and the rents and profits, which value the clerk ascertains. The penalty, therefore, is not fixed at any certain sum applicable to all cases. It may not be the same in any two bonds. It is at least variable, just as in the case of the amount to be paid in ordinary bonds or notes under seal, and the insertion of it is, therefore, just as material and essential to (362) the completeness of a statutory bond as the amount to be paid is to that of an ordinary bond. The amount must be expressed in both. We are unable to see how any authority to fill up the blank can be implied in the case of a statutory bond that would not be equally implied in the case of other bonds. Both kinds of bonds are delivered to carry out the intention of the obligors, and in the case of a guardian bond there is the additional reason against the implication that the amount of the penalty is expressly required to be ascertained by the clerk. An individual in his private capacity cannot execute a statutory power.

Our purpose has not been so much to prove that the paper-writing signed by the defendants is void as a bond, as to make clear the construction we put upon the verdict, and to show, consequently, the findings of the jury to be so conflicting that the court below could not proceed to judgment, and that this Court cannot now intelligently pass upon the merits of the case. The view we take of the question involved leads us to the conclusion that there should be a new trial, so that the facts may be fully and consistently found by the jury. The plaintiff may be able to show that the bond is a valid obligation of the defendants.

New trial.