DeCoo v. Woodworth

McGrath, J. Complainant had given a mortgage to his father, who died testate in May, 1888, leaving the mortgage to complainant, charged with the payment of decedent’s debts, his funeral expenses, the erection of a monument upon the family burial lot, and the payment of $400 to complainant’s sister, Mrs. Bursons. Defendant was named, appointed, and qualified as executor. Complainant had, in 1888, paid the funeral expenses and debts, and had erected the monument. ■ Woodworth had a personal claim against the husband of Mrs. Bursons of $457, for which he held Bursons’ notes. He regarded this claim of little value, and considered complainant as solvent. In November, 1888, he made an arrangement with Mrs. Bur-sons by which he was to surrender her husband’s notes, take her receipt in full for the legacy, and take complainant’s note for $400, and look to him for that amount. This arrangement was carried out. Bursons’ notes were surrendered, Mrs. Bursons gave her receipt “ in full of the legacy,” and complainant gave his note to Woodworth for [364] $400, payable one year after date. The receipt given by Mrs. Bursons was filed in the probate court. No assignment of Mrs. Bursons’ claim was asked for or taken. Defendant’s version of the transaction is as follows: '' Q. Did you at the time agree with Hannah Bursons and her husband to take the note or obligation of Abraham De Coo for $400, in payment of her legacy? “A. Yes, that was the agreement upon which the notes were surrendered. * * * " Q. Soon after your return home, did you see Abram De Coo, Jr., in relation to this matter, state to him the arrangement that you had made with Hannah Bursons and her husband, and request him to give you his note of $400? “A. Well, it was, I think, in May. I went down to C-rand Ledge, and I stayed with Abram over night, and I told him there that I had made this arrangement; and he gave me a note, at my request, for $420, in paymen't of this legacy and some other business.” Complainant testifies that when he gave the note to defendant the latter ■ agreed to close up the estate and discharge the mortgage. Defendant does not deny this. His testimony is as follows: “ Q. To refresh your recollection, at the time Mr. De Coo gave you the $400 note, did you not state to him, in the presence of his wife, that everything was fixed up satisfactorily? 'Come up, and we will go to Charlotte and discharge the mortgage?’ "A. I did not; not in them words. " Q. Did you say so in substance? "A. I will state what I said: I stated then that we would come out sometime, and straighten the business all up, and I would get my discharge and the discharge of ■the bondsman. " Q. And you meant, of course, that that included the discharge of the mortgage? “A. Yes, of course; all of the business. * * * ‘‘Q. Was there anything said, at the time you took the note, that you took it in payment of the legacy? “A. I think there was. Well, nothing in particular said, more than this. Abe and I settled up, and added $20 that he also owed me, and put -it all in one note. [365] “Q. What was said about your taking that note in payment of the legacy? “A. Well, we was to meet at Charlotte, and settle up the business. ******** “Q. You say this was after he had given you the note? “A. Yes. Now, this was not the talk, but it was my supposition, — that he would come out, and the whole thing, would be settled up, so that I could get my discharge; and that would include the discharge of the mortgage. This I said to Abe; that some time we would go out to Charlotte, and we would settle the whole matter up, so that I could get my discharge. After this note was signed, I went and saw Abe, and wanted him to go to Charlotte and fix this matter up, so that I could get the release of Mr. Hudson, who was on my bond. There was a day set, and on that day I came down here. I came for the purpose of making a final settlement.” He says further: "I never asked him to pay the note but once, and that was about six months after it became due. At the time I took the note, I considered him perfectly solvent. If I had known his financial condition, I would not have taken this note. I never expected to get my pay on the Bursons notes.” Defendant kept the note for 1 year and 10 months, then returned it under cover, and, as executor, commenced a statutory foreclosure of the mortgage. His theory now is that he was mistaken in regard to complainant’s solvency at the time that the note was given, and that he had. a right to surrender the note, and sue on the original obligation. But the original obligation was due to Mrs. Bur-sons. Complainant was released from that obligation, and assumed another, — the indebtedness of Bursons. Mrs. Bursons receipted in full for the legacy, Woodworth filed that receipt in the probate court, complainant gave his personal obligation to Woodworth, and both parties agreed that the mortgage should be discharged, the estate closed, and Woodworth’s bondsman released. Complainant owes defendant $400, but, in consideration of his assumption of [366] the promise to Woodworth, the latter agreed to discharge the mortgage and close np the estate. The very security which he claims the right of succession to he agreed to discharge, and that agreement entered into the consideration for the note. He cannot now be allowed to revive the mortgage, nor can he be permitted to use his office as executor to enforce payment of an obligation running to himself. The decree below is reversed, and a decree entered here for complainant, with costs of both courts. Long and Montgomery, JJ., concurred with McGrath, J.