| N.C. | Dec 5, 1859
(188) The sci fa. was brought first in Rowan County Court, at the instance of D. W. Hunnicutt and the administrator of one Holshouser, who had been the sureties of the defendant Boyden, and was brought to the Superior Court by appeal. It recited the judgment against the three correctly. A fi. fa. had issued and been returned nullabona; a ca. sa. had also issued against Boyden, on which he took the benefit of the act for the relief of insolvent debtors. The execution docket of Rowan County Court showed this entry opposite to the statement of the execution in this case: "January 18, 1851, for value received, I assign this judgment to Archibald Hunnicutt." Signed, A. W. Brandon.
It was shown by James E. Kerr, Esq., clerk of the County Court of Rowan, that at the time this assignment was made, the plaintiff in the judgment, Colonel Brandon, and the two sureties, came to him and told him that the sureties had paid or settled with the plaintiff, and they wished to have the matter so fixed on the docket as to keep the judgment alive for the benefit of the sureties. He did not recollect when it was said this arrangement was made, but his impression was it was then. He saw no money paid.
The judge charged the jury:
1. If it was understood at the time the plaintiff received the money from the sureties that it was a payment, the plaintiff was not entitled to recover.
2. If there was no understanding at all at the time the plaintiff received the money from the sureties, then it was a payment, and the plaintiff would not be entitled to recover.
3. If at the time when the plaintiff received the money for the sureties it was understood that an assignment was to be made in order to keep the judgment in force and alive for the benefit of the sureties, and the assignment was then or subsequently made in pursuance of such understanding, then such receipt for the money on the part of the plaintiff was not a payment, and the plaintiff would be entitled to their verdict. *147
Defendant excepted.
Verdict and judgment for the plaintiff; appeal by the (189) defendant. The right of a surety to keep alive a judgment which he has paid, by having an assignment made to a stranger for his benefit, is unquestionable. When he advances the money, he has a clear equity (if he desire it) to be subrogated to the rights of the creditor, and to use the creditor's judgment for the purpose of coercing payment against the principal.
Whether money advanced in such a way be an extinguishment or a purchase seems to be a question of intention. If it be paid, and nothing be said or done to show a contrary intendment, an extinguishment will be presumed; but if an assignment be made to one not a party, so as to show a purpose to keep it alive, it is sufficient. That a party defendant furnishes the money, and that the assignment is made on a day subsequent to the advancement of the money, can make no difference, provided it was intended, at the time it was advanced, as a purchase and not as a payment.
The money furnished to pay the judgment was from a surety, but it is affirmed as a fact by the verdict of the jury that it was not intended to extinguish the judgment, but to purchase it. There was no release or satisfaction entered of record, or otherwise declared, but an assignment to an indifferent person for the use of the purchaser.
There is no authority or reason against the revival of the judgment upon this state of facts. The instruction of the judge below, based upon it, is entirely correct, and the judgment is, therefore, affirmed. Hodges v.Armstrong,
PER CURIAM. Affirmed.
Cited: Rice v. Hearne,