McInturff v. . Gahagan

Brogden, J. The will of S. S. Shelton was construed by the Chancery Court of Greenville, Tennessee, in an action entitled, Mary Hampton, Executrix, v. Margaret Bell Shelton et al. The judgment in that decree provided: “But in case of the W. C. Cook note, he will be allowed the preference to keep the amount, on condition he keeps it properly secured.” It is contended that this is rels adjudicaba. It does not appear from the record that either the defendant, Cook, or the defendant, Gahagan, or his executors were parties to that suit. No document appears in the record except the judgment and it is impossible to determine what the subject-matter of the suit was. Estoppel by judgment arises upon the following essentials: 1. Identity of parties; 2, identity of subject-matter; 3, identity of issues. Hardison v. Everett, 192 N. C., 371. No such identity sufficient to constitute estoppel by judgment appears upon this record. The controlling question presented to the trial court and upon this appeal, is whether or not the clause in S. S. Shelton’s will, referring to the Cook note, legally extends or postpones the time of payment or collection of said notes until the death of the testator’s wife. The notes were promissory notes, dated on 13 and 14 of November, 1916, and due on 14 November, 1917. The language relied upon as constituting the agreement to extend the time of payment is the following words of the will of S. S. Shelton, the payee, to wit: “W. O. Cook to hold what he owes until both of our deaths and pay the interest to my wife, Mrs. S. S. Shelton, to support her as long as she lives.” *149 The time of payment of promissory negotiable notes may be extended by a proper agreement upon a valuable consideration for a definite period of time. An analysis of this record will disclose, in the first place, that there'has been no agreement to extend the time of payment of these notes. The will of S. S. Shelton did not take effect until his death. There is no evidence of any agreement between the defendants, and the payee, Shelton, prior to his death, and a posthumous or ex partd declaration in a will, which does not take effect until after the death of the testator, could not be deemed an agreement between the parties. Neither can the language of the will be construed as a gift of the notes to the defendant, W. C. Cook, for the reason that the parties who are to receive the proceeds of the notes are named and designated in the will. Indeed, if the language of the will could be construed as an agreement to extend the time of payment, it would be unenforceable by virtue of the fact that it was without consideration. There is no element of benefit to the promisor or detriment to the promisee which would support the agreement. Scott v. Fisher, 110 N. C., 311; Piner v. Brittain, 165 N. C., 401; Institute v. Mebane, 165 N. C., 648; Roberson v. Spain, 173 N. C., 23; Exum v. Lynch, 188 N. C., 392. Therefore, there being no valid and enforceable agreement to extend the time of payment of these negotiable instruments, the judgment is Reversed.