State ex rel. Wells v. Sluder

70 N.C. 55

• Court: Supreme Court of North Carolina
• Decided: January 15, 1874
• Status: Published

Opinion

PeabsoN, C. J.

In regard to the Sensabaugh debt, we do not concur in the legal inference of his Honor that the facts set out in the “ ease agreed ” establish a want of due diligence on the part of the administrator.

As..is said in Keener v. Finger, at this term, a The defendants, in the exercise of due diligence, were not required to foresee the fact, that under the construction given to the homestead act, it would be held to apply to pre-existing debts, as in Hill v. Kesler, 63 N. C. Rep. 437, and that such significance would be given to the, fact ,©f a levy on land, as in McKeethan v. Terry, 64 N. C. Rep. 25. We are of opinion that the defendants are entitled to the credit claimed in respect to this debt, according to the case agreed.

In regard to the Patty note, we concur with his Honor. The defendant Sluder at first declined to receive Confederate notes. This shows he was aware it was not prudent to do so, and it was his misfortune to allow himself to be intimidated by what he had heard of the intemperate language of Jndge Saunders and to yield to a groundless fear. This distinguishes the case from Harshaw v. Dobson, 67 N. C. Rep. 203, where the “duress” was direct, immediate and on the spot. Here, it was indirect, remote and not in the face of a.Judge unduly excited by his zeal for the Confederate cause, and with the power apparently to carry his threats into execution and order an infirm old man to be “ sent to Richmond.”

The defendant having received the money, the question is, shall the loss fall upon the trust fund or upon him ? The fact that he made use of the money and mixed it with his own settles the question. Shipp v. Hettrich, 63 N. C. Rep. 329.

The judgment below will be modified according to this opinion, and the costs of this Court will be taxed against the parties equally.

Per Curiam. Judgment accordingly.