Civil ActioN, tried at Spring Term, 1881, of Wilees Superior Court, before Seymour, J.

The only question presented by this appeal is whether the' court below committed an error by striking out the answer of the defendants, as sham and frivolous, and giving judgment for the plaintiff.

The plaintiff alleged that the defendants were indebted to him by two single bills, which were as follows:

First. Twelve months after date we promise to pay J. J. Howell four hundred and fifty dollars value received, interest at eight per cent, from date, provided the note is paid in twelve months, if not at six per cent. Dec. 6th, 1879. (Signed and sealed by Wm. T. Ferguson and Joel T. Ferguson.

Second. Six months after date we promise to pay J. J. Howell four hundred and fifty dollars, for value received, interest at eight per cent, from date, provided the note is not paid in twelve months, if so, at six per cent. Dec. 6th. 1869. (Signed and sealed by same parties.)

The defendants admitted the execution of the notes and that no part thereof had been paid, but for a defence alleged that they were the executors of W. B. Ferguson, who died in the county of Wilkes about a year' previous, and that the mother of the plaintiff is one of the heirs at law and devisee of said Ferguson, and that during the life of the father of the plaintiff, and at the time of the execution of the notes sued on, plaintiff claimed to be the assignee of the interest to a certain extent of his said mother in the estate of the said W. B. Ferguson, and applied to defendants for payment thereof, but presented no assignment from his mother, with the written assent of the husband, and that the defendants inadvertently and without proper reflection as to their duties in the premises executed the notes sued OIL

They further aver that said assignment has not as yet been made to appear to them with the assent of the husband of the plaintiff’s mother, either written or.verbal; also, that it was a condition precedent to the execution of the notes, that they were to have a reasonable time within Which to convert real estate into assets for the payment of the notes after the expiration of the periods set out in the same, and that they have not- considered it consistent with the large discretionary power conferred upon them in the will of said W. B. Ferguson, to sell real estate for the payment of said notes, if it should turn out that plaintiff is the proper owner thereof, for the reason that owing to the scarcity of money and the nature and character of the real estate of the testator to be sold for the payment of the distributive shares of the heirs and devisees, they think it would work an injury to the devisees’ interests in said estate to make sales, &c. That said notes were not given for borrowed money, and they are advised and believe that they are only chargeable with interest at the rate of six per cent.

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