Guaranty Company, and also on the other It is unnecessary to consider whether it may defendants. Entry was made at that term not be made also in the manner prescribed by 25 days allowed defendants to answer and Revisal, § 440, for this is not an insurance continued." At March term 1910, judgment company but a bonding company authorized was entered for $880, and interest from dif- under Revisal, § 4805, and that section does ferent dates on certain amounts. $519.25 was not require service of process upon the insurcollected (besides costs and commissions) and ance commissioner, though they must be liwas credited on the judgment. In 1916, the censed by that officer. Service therefore unjudgment having become dormant, upon no- der Revisal, § 440 (1), is valid when made tice to defendants it was revived and execu- upon a local agent of such corporation, and tion issued. Then after correspondence with it is therein provided that: defendant United States Fidelity & Guaranty Company and the state insurance commissioner, the court finds as a fact that said company "caused their attorneys Jones & Jones, Raleigh, N. C., to send their check to the clerk of the superior court of Wilkes to pay said judgment on January 20, 1917, and the clerk received the sa id check and marked the judgment satisfied. But before he paid the same to plaintiff, a restraining order was issued and served on the clerk, restraining him from paying out the money until further order of the court." The letter from Jones & Jones inclosing the check in payment of the judgment is as follows: "At the request of the United States Fidelity & Guaranty Company of Baltimore, Md., we are handing you herewith checks made by the Commercial National Bank of this city, upon the Hanover National Bank of New York, for the sum of $968.95, the amount of the judgment in your court in favor of Pardue against the United States Fidelity & Guaranty Company et al. Will you please do us the kindness to send us a receipt for the amount, and greatly oblige, "Any person receiving or collecting monies within this state for, or on behalf of, any corporation of this or any other state or government, shall be deemed a local agent for the purpose of this section." Indeed the term "local agent" is not limited to those receiving money for the company. Copeland v. Tel. Co., 136 N. C. 11, 48 S. E. 501. [2] Nor is it necessary to consider whether upon the facts of this case the company has waived a failure of service upon a proper officer, if such had been the case, by appearance in the action or by acquiescence in the judgment, for the defendant company has paid off the judgment with notice of all the facts and without protest. It is an "elementary rule that unless otherwise provided by statute a party cannot either by direct action, or by way of set-off or counterclaim, recover money voluntarily paid with the full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed." 30 Cyc. 1298. This applies to vol and— "money voluntarily paid to satisfy a judgment which has not been reversed cannot be recovered back, and it is immaterial that the recovery was fraudulent. Payment of a judgment is voluntary unless made to procure the release of the goods of the party making the payment after seizure or to prevent their seizure by an officer armed with the authority or apparent authority to seize them." Id. 1302. "Yours truly, Armistead Jones & Son." The judge also finds as a fact that while the Fidelity & Guaranty Company had auntary payments by corporations (Id. 1300), process agent, then and now, G. A. Follin, at Winston, the subject-matter of this action "was not an insurance transaction, and that the said company was not strictly an insurance company in the meaning of the statute, but was transacting the business of a bonding company, and that said F. D. Hackett (upon whom the summons was served in 1910) not only solicited business for the company as a bonding company but received money for said company in the way of premiums or commissions on said bonds and also was such an agent as would reasonably be expected to give his principal notice of the suit." The court denied the motion to set aside the judgment and said company appealed. J. C. Wallace, of Winston-Salem, and E. C. Willis, of No. Wilkesboro, for appellant. Hackett & Gilreath, of Wilkesboro, for appellees. [3] It can make no difference that afterwards the appellant alleged that it made payment to prevent a revocation of its license to do business in this state. It made no protest at the time, and the fact that it thought it was to its advantage to pay this judgment cannot vitiate the effect of the unrestricted payment in full of the judgment, without protest. paid and cancellation entered on the docket [4, 5] Moreover, the judgment having been by the clerk before service of the restraining CLARK, C. J. [1] The defendant contends order, there is no judgment to be set aside, that the judgment was void as to the Fidelity and no ground to restrain the payment of the & Guaranty Company because the summons money over to the plaintiff as whose agent was not served upon the insurance commis- the clerk held the same, for there is no alsioner. In Fisher v. Insurance Co., 136 N. legation of fraud or deceit in procuring the C. 224, 48 S. E. 667, it was held that service payment to be made. There was full discusof process on an insurance company is not re- sion and correspondence, and the company stricted to that method as prescribed by Re-ordered the payment to be made with full visal, 4750, but that it may be made also knowledge of all the facts. 416 (174 N. C. 814) STATE v. COFFEY. (No. 468.) (Supreme Court of North Carolina. Dec. 5, 1917.) 1. HOMICIDE 253(1)—MurdER IN THE FIRST DEGREE-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to support a convic tion of first-degree murder. 2. HOMICIDE 22(2) — FIRST-DEGREE MUR DER-PREMEDITATION. In first-degree murder no particular time is required for the process of premeditation and deliberation, and when the fixed deliberate purpose to slay is once formed, it is immaterial how soon it is executed. 3. HOMICIDE 214(3) — FIRST-DEGREE Mur- Appeal from Superior Court, Caldwell The defendant replied: "I do not know; that is what I aimed to do." There is also evidence of previous ill will and quarreling. Moved by the earnest eloquence of defendant's counsel, we commenced the examination of this record with the hope that some exculpating circumstances would be found, but the simple statement of the evidence discloses abundant proof of a deliberate and willful homicide amply sufficient to support the charge of the judge and the verdict of the jury, and no discussion of it is necessary. It is true there is evidence that the defendant was drinking, but that does not justify the taking of human life. Besides, there is very strong evidence that he was not drunk. The sheriff says: "John Coffey was not drunk. He outran me, and it takes a speedy man to do that." [2] No particular time is required for the process of premeditation and deliberation. When the fixed deliberate purpose to slay is once formed, it is immaterial how soon John Coffey was convicted of murder in the first degree, and he appeals. Affirmed. Moses M. Harshaw and W. C. Newland, afterwards such resolve is executed. This both of Lenoir, and J. H. Burke, of Taylorville, for appellant. The Attorney General and the Assistant Attorney General, for the State. subject is so fully discussed in numerous cases that we forbear further discussion. State v. Walker, 173 N. C. 780, 92 S. E. 327, and cases cited. [3] The only other assignment of error is to the evidence of Harris, who was permitted to state that he went to the deceased and spoke to him, and deceased said: “Tell everybody I love them." We are unable to see, and defendant fails to point out, wherein he was prejudiced by this evidence. In our opinion, it was irrele vant and harmless. No error. (174 N. C. 636) BROWN v. WILSON. (No. 441.) (Supreme Court of North Carolina. 1917.) Nov. 28, 40 BROWN, J. [1] The defendant excepts to the refusal of the court to instruct the jury that there is no sufficient evidence of murder in first degree. There is evidence tending to prove that defendant shot and killed Albert Kirby under these circumstances: The The deceased was playing baseball. defendant came around the left side of the ballfield up to the deceased and said something to him, and the deceased replied: "I will do you right; I do not want to have any trouble with you." At that time the umpire called, "Play ball," and as the deceased turned to resume the game, with nothing in his hand but the baseball glove, the defendant deliberately shot him twice, once in the side, and almost immediately a second time in the back. The defendant pulled the pistol out of his right pocket, and used both hands in shooting it. The defendant then ran, with the sheriff, who happened to be present, pur-representative of the ward on the latter's death. suing him. After a long chase the sheriff shot at defendant, who then surrendered. There is evidence that defendant approached deceased with his hand in the right side pocket of his coat, and that a half hour before they had been quarreling. There is evidence that at time of the homicide deceased begged defendant to go off and leave him, stating One that he did not desire any trouble. witness testifies that immediately after the killing, and while the body of the deceased was lying on the ground, somebody walked up to the defendant and said: "John, you killed him, and I guess you hate it now." 1. EXECUTORS AND ADMINISTRATORS 2. GUARDIAN AND WARD 146-FUNDS IN HANDS OF GUARDIAN-ACTION FOR PLEAD ING. A complaint which alleges that the court or dered the sale of land for a specified amount, and that the guardian sold the land, does not state a cause of action for the money, unless it is alleged the money came into the hands of such guardian. 3. GUARDIAN AND WARD 146 ACTION An allegation by an heir of a ward that a guardian was appointed in 1856 was insufi cient to show that the ward was a minor in 1861 at the time of a sale of land by the guardian; the issue being whether the proceeds were realty or personalty. 4. CONVERSION ——7—Sale of Land-Age OFI came into the hands of the guardian. The WARD. If a ward was of full age at the time of a sale of land by the guardian, the proceeds were personalty, and not real estate for which the heir of a ward could sue; the doctrine of equitable reconversion applying only to the proceeds of the sale of real estate belonging to infants and married women. Appeal from Superior Court, Mecklenburg County; Cline, Judge. Action by Mrs. Emmie Lemley Brown against George E. Wilson, executor of Joseph H. Wilson. Judgment for defendant, and plaintiff appeals. Affirmed. stated to plaintiff's counsel that if he would so amend his complaint as to specifically allege that the $8,000 proceeds of the sale of real estate to John A. Young ever came into the hands of the said J. H. Wilson, as guardian, he would overrule the demurrer. Plaintiff's counsel stated in open court, as appears from the judgment, that she was unable to amend her complaint. The court thereupon sustained the demurrer, and dismissed the action. The plaintiff excepted and appealed. T. W. Alexander and Hugh W. Harris, both of Charlotte, for appellant. Osborne, Cocke & Robinson and Cansler & Cansler, all of Charlotte, for appellee. defendant demurred: (1) That there was a defect of parties plaintiff in that the personal representative of Ella R. Carson and the personal representative of Richardine Carson, who are the only parties who can maintain this action for an account and payment of any distributive share of R. C. Carson, deceased, which may have been in the hands of the defendant's testator at the time of his death, are not parties. (2) That the plaintiff in her own right cannot maintain this action. (3) For that there is a misjoinder of causes of action in that the plainThis action was brought by the plaintiff tiff has attempted to unite in her complaint in her own right against the executor of a cause of action which could be instituted Joseph H. Wilson for a settlement of the only by the personal representative of Ella guardianship of her mother, Ella R. Carson, R. Carson, and the cause of action which and her mother's sister, Richardine Carson, should be brought only by the personal repboth long since dead. The complaint al-resentative of Richardine Carson. The court leges that Joseph H. Wilson qualified as guardian of Ella R. Carson and sister, Richardine, at October term, 1856, and that he failed to file any final account as to Ella R., and filed only a partial final account as guardian of her sister. It is also alleged that at November term, 1856, in an action in which the said wards were plaintiffs and John A. Young and others were defendants, it was ordered by the court that a one-third interest of said wards in certain real property derived from their father, R. C. Carson, be sold to one Young for $8,000, and that the said Joseph H. Wilson was appointed commissioner to make said sale, and that the record shows that his deed conveying said interest was dated in 1863, and registered in CLARK, C. J. [1] An action for any funds 1867; the consideration named therein being in the hands of the guardian of Ella R. Car$8,000. It is also alleged that said Wilson, son and of her sister Richardine, which said as guardian of Richardine, partially settled guardian is alleged to have received as a with her in 1877 by paying to her $3,000, the distributive share from the estate of the proceeds of certain insurance money collect- father of said wards, can be maintained only ed on policies on her father's life, and fur-wards. Goodman v. Goodman, 72 N. C. 508; the personal representatives of said ther that said J. H. Wilson never filed any Merrill v. Merrill, 92 N. C. 665. inventory or final account of his guardianship of herself or her sister. It is alleged upon information and belief that the said Joseph H. Wilson, as guardian, was indebted to said Ella R. Carson in the sum of $3,000, a part of the distributive share of her father's estate. Section 14 of the complaint alleges that the plaintiff as the sole heir of Ella R. Carson and Richardine is entitled to the sum of $8,000, with interest from January 1, 1861, "being the proceeds derived from the sale of said interest in real estate as hereinbefore set forth and still in the hands of the said guardian at the time of his death." The prayer for judgment is, first, for the sum of $3,000, as Ella R.'s part of the distributive share of her father's estate, and, second, for $8,000, with interest from January, 1861, as the proceeds of the sale of the wards' interest in the property conveyed to John A. Young. The complaint does not allege that the proceeds of said sale ever the proceeds of the sale from realty into per by [2] The complaint does not allege that the proceeds of the sale of the real estate belonging to said ward came into the hands of said guardian, and the plaintiff having expressed her inability to amend the complaint to so aver the demurrer was properly sus tained. [3, 4] As to the second ground of demurrer the allegation in the complaint is that the realty was sold by J. H. Wilson, commissioner. The complaint does not aver, and the plaintiff refused the leave given by the court to amend the complaint to aver, that the proceeds of the realty came into the hands of Wilson as guardian. The plaintiff cannot maintain this action, for it is not averred in the complaint that at the time of the sale of the realty in 1861 the mother and aunt of the plaintiff were then minors. If they were of full age when the sale was made in 1861 such sale worked a complete conversion of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sonalty, and consequently such proceeds could be recovered only by the personal representatives of the plaintiff's mother and heir. In Benbow v. Moore, 114 N. C. 270, 19 S. E. 157, Shepherd, C. J., says: "It was at an early period laid down by Sir Thomas Sewell, M. R., in the leading case of Fletcher v. Ashburner, 1 Bro. C. C., 497, that money directed to be employed in the purchase of land and land directed to be sold and turned into money are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund or the contracting parties may make land money, or money land.' This principle is so universally accepted that it is needless to cite additional authority in its support, and it is equally well settled that every person claiming property under an instrument directing its conversion must take it in the character which that instrument has impressed upon it, and its subsequent devolution and disposition will be governed by the rules applicable to that species of property." 1 Williams, Ex'rs, 551; Proctor v. Ferebee, 36 N. C. 143, 36 Am. Dec. 34; Smith v. McCrary, 38 N. C. 204; Brothers v. Cartwright, 55 N. C. 113, 64 Am. Dec. 563; Conly v. Kincaid, 60 N. C. 594; Adams' Eq. 136. The court adjudges that the true dividing line is the yellow line J, H, and that plaintiffs own the lands north and defendants the lands south of it. This finding gives the locus in quo to defendants. PER CURIAM. This action is to recover a tract of land containing 24 acres and represented on map by boundaries marked D, J, H, B, C. The plaintiffs own the land lying north and defendants the land lying south of the locus in quo. It seems that both parties The doctrine of equitable reconversion ap- trace their title back to a common source, plies only to the proceeds of the sale of real and that the controversy is as to the proper estate belonging to infants and married location of the dividing line between the women which, under the statute then and two tracts. Plaintiffs contend the true dinow in force, retained the character of real-viding line is the red line C, B, on plat. ty, and not to the proceeds of the sale of Defendants contend it is the yellow line J, H. real estate belonging to persons of full age. The fact that J. H. Wilson qualified as guardian in 1856 is no allegation that they were minors still in 1861. In fact the land was turned into money, and was therefore the subject of an action by the personal representative. The doctrine of "equitable reconversion," which 2 Mordecai, Law Lectures (2d Ed.) 1370, styles the "child of the Lord Chancellor's imagination," has no room for application, for "reconversion is the result of the election expressly made or inferred by a court of equity, and is the notional or imaginary process by which a prior constructive conversion is annulled and the constructively converted property is restored, in contemplation of a court of equity to its original actual quality" (Id.). Here there was nothing to change the money received from the sale of the land, even imaginatively, back into land. The judgment sustaining the demurrer is affirmed. (174 N. C. 773) MCNEILL et al. v. BUIE et al. (No. 282.) The plaintiffs file a number of exceptions to the report of the referee, and also assignments of error to the judgment of the court. In the view we take of the case, it is not necessary in the disposition of this appeal to discuss them. The referee finds: That the "defendants and those under whom they claim have been in the open, notorious, ad200 acres of the O'Berry grant 'known as the verse and undisputed possession of the 'middle Solomon Johnson old place,' up to the true dividing line between the Patrick Smith land and the Neill Buie land, for more than 30 years prior to the commencement of this cause." It is the middle 200 acres of the O'Berry grant known as the Solomon Johnson old place, or the Patrick Smith land that defendants own and claim covers the locus in quo and runs up to the dividing line J, H. It is the upper 200 acres, or Buie land, that plaintiffs own and claim runs down to C, B. The referee further finds: "That the defendants and those under whom they claim have exercised such ownership of the ABANDON-uncleared land lying south of the true dividing line between the Smith and Buie land, as the land was capable of, since 1804, the date of the deed to Patrick Smith. APPEAL AND ERROR 1078(5) The assignment of error that there is no evidence to support certain findings of fact under "That the plaintiffs and those under whom they claim have never exercised any continuous | It does not appear that he filed any final acts of ownership and have never been in the account as administrator. actual possession of any portion of the land lying south of the true dividing line between the Smith land and the Buie land." account. The said George E. Wilson duly qualified as executor, advertised for creditors to present their claims, and has made a final setThe plaintiffs except to these findings of tlement of the estate and has filed his final fact upon the ground that there is no evidence to support them. We think there is ev-ministratrix d. b. n. in 1916, and immediateThe plaintiff was appointed adidence sufficient to support the finding, but ly thereafter commenced this action. There this assignment of error under the rules of was evidence upon the trial tending to show this court cannot be considered, as it is deem- that assets went into the hands of said J. ed to have been abandoned, not having been H. Wilson, administrator, and also of the set out and discussed in the brief. We think payment of debts by him. this disposes of the appeal. 1. EXECUTORS AND ADMINISTRATORS 464 437(3) Limitations in force since 1868 apply as against a distributee of an estate where administrator distributed the estate before such date and tendered no refunding bond; Code, §§ 136, 137, providing otherwise, being repealed by Laws 1891, c. 113. Appeal from Superior Court, Mecklenburg County; Cline, Judge. Action by Emmie Lemley Brown, admin- | istratrix d. b. n. of the estate of R. C. Carson, against George E. Wilson, executor of the estate of J. H. Wilson, for an accounting. Judgment for defendant, and plaintiff appeals. Affirmed. See, also, 94 S. E. 416. This is an action by Emmie Lemley Brown, administratrix d. b. n. of the estate of R. C. Carson, against George E. Wilson, executor of the estate of J. H. Wilson, for an accounting. R. C. Carson died intestate in 1856, leaving surviving him two children, Ella R. Carson and Richardina Carson, and Joseph H. Wilson in the same year qualified as his administrator. Ella R. Carson became 21 years of age in 1864, married Dr. Lemley in 1868, and died in 1875, leaving the plaintiff, Emmie Lemley Brown, her child surviving her. Richardina Carson became 21 years of age in 1867, made a settlement with the said Wilson, administrator, in 1877, and died intestate in 1887. The defendant pleaded in bar of the action the statute of limitations of three, seven, and ten years, lapse of time, and abandonment, and the action was tried upon these pleas. The court charged the jury as follows: "The first issue submitted to you in this case is this: Is the plaintiff's cause of action set out in the complaint barred by the statute of limitations? The court is of the opinion, and so instructs you, if you believe all the evidence in this case, your duty is to answer the first issue 'Yes.' "Second. Is the plaintiff's cause of action set out in the complaint barred by the lapse of time? The court is of the opinion and so instructs you, that if you believe all the evidence in this case, your duty is to answer the second issue 'Yes.' "Third. Has the plaintiff, and those under whom she claims, by their conduct abandoned the cause of action set out in the complaint? The court, being of the opinion, so instructs you, if you believe all the evidence in this case, it is your duty to answer the third issue 'Yes.'" To the foregoing charge of the court the plaintiff duly excepted. Judgment was entered in favor of the defendant, and the plaintiff appealed. 'T. W. Alexander and Hugh W. Harris, both of Charlotte, for appellant. Osborne, Cocke & Robinson and Cansler & Cansler, all of Charlotte, for appellee. ALLEN, J. The evidence strongly supports the contention of the defendant that the estate of R. C. Carson has been fully administered, and that all of the assets coming to the hands of the former administrator were exhausted in the payment of debts. [1] It may also be maintained on the record that, if there was a surplus after the payment of debts, as J. H. Wilson was both administrator of the estate and guardian of the infant children, the law would transfer the surplus from the administrator to the guardian under the authority of Ruffin v. Harrison, 81 N. C. 208, affirmed on petition to rehear, 86 N. C. 190, in which event the right of action would not be in the plaintiff, but in the administrator of the ward, who would be barred under Dunn v. Beaman, 126 N. C. 766, 36 S. E. 172. The said Joseph Wilson also qualified as We will not, however, rest our decision on guardian of the said Ella and Richardina either of these grounds, as the case was Carson in 1856. Joseph H. Wilson died in tried in the superior court on the pleas of 1884. leaving a will, and appointing the de- the statute of limitations, lapse of time, and fendant, George E. Wilson, as his executor. I abandonment, and the appeal presents for |