1. Where a suit abated by the death of the defendant, and an execution issued against the plaintiff for all the costs, at the instance of the heirs of the deceased, the execution was void, and a note given by the plaintiff for the purpose of discharging it, being without consideration, the plaintiff has a right in equity to be relieved against it.
2. A note being passed without indorsement, and therefore there being no legal title in the person to whom it was transferred, he is subject to the same equity as the payee, without regard to the question of notice.
3. An officer who merely proceeds to collect an execution put into his hands as an officer ought not to be made a party to a bill of injunction, and if he is so, the bill will be dismissed as to him with costs.
PEARSON, J.
The execution in favor of "the heirs of G.W. Bradley" against Lackay was void, and the note executed by the plaintiff to the defendant Curtis was therefore without consideration, and they have an equity to prevent its collection and to have it surrendered.
The note was transferred to the defendants Conley and Brown without indorsement. The legal title did not pass to them, and they hold it subject to the same equity that Curtis did, without regard to the question of notice.
The plaintiffs must have a decree for the surrender of the note and costs. As to the cash paid Curtis, the plaintiffs have their remedy at law, and the court cannot take jurisdiction.
The bill must be dismissed, with costs as to the other defendant, McNeeley. He was acting as constable — a minister of the law — and had no interest whatever in the controversy, and it was wrong to put him to the expense of filing an answer. Edney v. King, 39 N.C. 474.
PER CURIAM. Ordered accordingly.
Cited: Emmons v. McKesson, 58 N.C. 95; McLane v. Manning, 60 N.C. 611; Stout v. McNeill, 98 N.C. 3.
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