# Sutton v. Bessent

> Supreme Court of North Carolina · December 1, 1903 · 133 N.C. 559

URL: https://www.frixlaw.com/law-library/cases/6694584

## Case

- **Full name:** SUTTON v. BESSENT
- **Court:** Supreme Court of North Carolina
- **Decided:** December 1, 1903
- **Citations:** 133 N.C. 559
- **Precedential status:** Published
- **Opinion:** Concurrence by Waxjoír
- **Judges:** Douglas, Montoomert, Oonnon, Waxjoír
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6694584

## Opinion text

WaxjoíR, T.,
concurring. I concur in the result reached by the Court, but I cannot assent to tbe statement, which, by tbe way, is not in my opinion necessary to tbe decision of tbe case, that tbe illustration of tbe presiding Judge in reference to tbe debt of Mr. Grogan was not a correct or proper one in law. While it is decided in Bank v. Gilmer, 116 N. C., 684 , and other cases affiiming that decision, that a failure to *564 file a schedule of the preferred debts will vitiate the assignment under the Act of 1893, ch. 453, in the more recent cases of Brown v. Nimocks, 124 N. C., 417 , and Friedenwald v. Sparger, 128 N. C., 446 , and Hall v. Gottingham, 124 N. C., 402 , it is held that if any one or more of the preferred debts are invalid or insufficiently described in tbe schedule, the assignment is not void as a whole by reason thereof, but will have effect and be enforced as to' those debts which are valid, and which, if preferred, are properly scheduled. The case of Brannock v. Brannock, 32 N. C., 428 ; 51 Am. Dec., 398 , and Morris v. Pearson, 79 N. C., 253 , are cited in support of the principle, and I think they clearly sustain it. The doctrine of these eases is: that there being; m> good reason why an honest creditor whose claim is valid in every respect should lose or suffer because of the invalidity of some other debt secured by the assignment, one bad debt will not, therefore, be allowed to invalidate the assignment as a security for those debts which are good. If the principle is applied to assignments with preferences, as it is in some of the cases, and is carried to its logical and legitimate consequence, it must be that when all of the preferences are invalid, either inherently or by reason of failure to file a schedule of them, the conveyance is still g'ood as to all the other valid debts, though not preferred. I do not see why it should be good as to some of the preferred debts when others are invalid or schedules of them have not been filed, and not good as to valid debts secured by the assignment when all of the preferred debts are invalid or a schedule of them has not been filed. The same reason which applies to the one must be applicable to the other, and the same rule of law, therefore, should govern in both cases. I doubt very much if it was the intention of the Legislature that the provision of the statute as to filing schedules should be mandatory to the extent of invalidating the assignment if it is not complied with as to *565 any of tbe preferred debts. I rather think that the provision was either directory or mandatory only in the sense that a failure to comply with it will not affect the validity of the assignment, but only deprive the preferred creditor who fails to comply with its requirements of any priority in the payment or distribution of the assets of the insolvent under the deed of assignment. There is abundant authority, I think, in support of this view.
This much has been said in order that my concurrence in the opinion of the Court will not be misunderstood as to the matter herein considered, or construed as an assent to the criticism of the Court upon the illustration given by the Judge in his charge to the jury.
OoNNon, J., concurs in the above concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6694584. Public record. Not legal advice.