Davis v. . Rogers

Smith, -0. J., after stating the case. We do not approve of-this ruling of the court. It is plain, that the execution and acceptance of the note, instead of payment, is not a compliance-with the terms of. the decree, by > which'the fund is declared to be for the use and equal benefit of the defend^ *416 ants, and the personal representative had no control over it. The decree, until modified, is binding upon all the parties to the action, and its obligations cannot be evaded by the contrivance resorted to in this instance. The money when paid into the office, could only be paid out to the defendants, and a note given the administrator is not a substitute to satisfy the requirements of the decree. The court therefore .erred in telling the jury that the giving and receiving the note, in place of paying the money, with the common intent evidenced by the entries, that it should be in discharge of the decree, can have such effect upon the rights of the defendants. 1. The execution of a note, never paid, is not a payment, unless so intended between the parties, and then, not as to other parties. 2. The administrator, being a stranger to the action, and not entitled under the decree, had no authority to exonerate the plaintiff. 3. The payment of the debt being a condition precedent and inseparable from the operation of the decree in passing the title, the estate in the land remains under the control of the'court, as a still subsisting security therefor. These propositions are supported by the following authorities. Barnes v. Morris, 4 Ired. Eq., 22; Hyman v. Devereux, 63 N. C., 624; Small v. Small, 74 N. C., 16; Walker v. Moody, 65 N. C., 599; Singeltary v. Whitaker, Phil. Eq., 77; Kidder v. McIlhenny, 81 N. C., 123, and other cases. The entry made, under the circumstances detailed, if allowed the effect contended for, would be a successful fraud upon the rights of others, and secure the. land to one who had never paid for it, and that under a decree that it should be paid for, before the title passed. The entry was unauthorized and inoperative. In Isler v. Murphy, 71 N. C., 436, a receipt written opposite the case stated upon the docket, in these words; “ Received *417 of J. T, Murphy the amount of this judgment and interest, •and my fee and the plaintiff’s costs,” and signed by S. W. Isler, attorney for plaintiff, was held to be no part of the record, inasmuch as it was not entered as part of the proceedings, or by the direction of the court. In our opinion, how and by whom the entry or memorandum was put upon the docket, was a proper subject of enquiry, in determining its legal import and conclusive effect upon the defendants. While it is true the fund properly belongs to the administrator, and doubtless would upon his application be ordered to be paid over to him, instead of the defendants, so that the plaintiff could not be compelled to pay the money a second time, until the decree is modified it belongs only to those entitled under the provisions of the decree. For the error assigned there must be a new trial, and it is so adjudged, Error. . Venire de novo. ■