Legal Opinion

Henry Whitted v. . Henry K. Nash

Supreme Court of North Carolina

Decided January 5, 1872PublishedCited by 4 opinions

This was a civil action tried before His Honor Judge Tour-gee and a jury, at Fall Term 1871, of Orange Superior Court. The facts as shown by the record are these : H. K. Nash, Edmund Strudwick and the late Judge Nash executed a note to the plaintiff ns guardian ; that afterwards Judge Nash died testate, leaving said Strudwick his executor ; that after bis death a note in renewal was executed bj H. K. Nash and Strudwick, and also signed by Strudwick as executor ; on an issue…

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This was a civil action tried before His Honor Judge Tour-gee and a jury, at Fall Term 1871, of Orange Superior Court. The facts as shown by the record are these : H. K. Nash, Edmund Strudwick and the late Judge Nash executed a note to the plaintiff ns guardian ; that afterwards Judge Nash died testate, leaving said Strudwick his executor ; that after bis death a note in renewal was executed bj H. K. Nash and Strudwick, and also signed by Strudwick as executor ; on an issue to the jury it was found that the plaintiff had never accepted the note offered in renewal; by the will of Judge Nash,…

1Opinion of the Court

PeaesoN, O. J.

If a simple contract creditor receives pay ment of the executor, a bond creditor cannot afterwards, either at law or in equity compel the contract creditor to refund, for although the bond debt is of higher dignity in the administration oillegal assets, both are creditors, and the creditor who is first paid may in good conscience retain the money, and leave the bond creditor to his remedy against the executors for a de-vastavit.

P It is equally clear that if the simple contract creditor accepts of the executor, property ot the estate of the testator, in satis faction of the debt,…

2Cited by4 opinions

  1. Denson v. Pine State Creamery Co.Supreme Court of North Carolina · 1926
  2. McBryde v. . PattersonSupreme Court of North Carolina · 1875
  3. Grimes v. . TaftSupreme Court of North Carolina · 1887
  4. Kadis v. . WeilSupreme Court of North Carolina · 1913

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