15 N.C. 103 | N.C. | 1833
PLEAS — non est factum, Payment — and an accord and satisfaction.
On the trial before Settle, J., at ROWAN, on the last Spring Circuit, the defense was that the principal debtor died in the year 1823, and that letters of administration upon his estate issued to the plaintiff, who received assets to an amount exceeding the debts of dignity superior to the one in suit, and of the bond debts for which he might retain. His Honor ruled this to be a satisfaction of the debt, as the presumption of law was that an administrator had applied the assets to his own debts as soon as he could do so in a legal course of administration. The plaintiff offered to prove that there were bond debts of the intestate to which he was surety, and which he had been compelled to pay, which with debts of a higher dignity, and the bond debts which he might retain, exceeded the amount of assets — but his Honor thinking that fact could not affect the defense, a verdict was returned for the defendants, and the plaintiff appealed. The effect simply of the administration of the creditor on the estate of one of the obligors, is not to be determined in this case, because the defendants have not pleaded that fact. The material pleas are payment and satisfaction; the defendants choosing to rely (104) on the merits, and fact of satisfaction, rather than on the ground that the creditor, by his own act of administering, had suspended and thereby extinguished his remedy.
On the trial upon these issues, it appeared in evidence that the plaintiff is the administrator of William W. Chaffin, a coobligor with the defendants, and received assets more than sufficient to pay this, and all other bond debts of the intestate to himself. The Court held, that the debt was satisfied by the receipt of assets to a larger amount; and also rejected evidence offered by the plaintiff, that the intestate owed bond debts to other persons, in which the plaintiff was his surety, and which he had paid off to the amount of the assets received by him.
The first position is in conformity to Muse v. Sawyer,
From that, the correctness of the second position seems to be *86 a necessary consequence. If the plaintiff were a creditor by several bonds, to a larger amount than all the assets that have come into his hands, in reason and justice, he ought to be at liberty to apply the assets to such of his bonds as he chose, and the law in case he had not actually applied them, would presume him to apply them to those debts for which the creditor had no other security but the single bond of the intestate. But if the administrator be a creditor by bond, and also by simple contract, the assets are first applicable to the former debt, and must be so applied. The doctrine of retainer is founded upon the idea that the debt is extinguished by the receipt of assets, whenever those assets can, in the course of administration, be legally applied to the debt. It does not appear in the record, whether the plaintiff paid the bonds in which he was surety, before or after he administered. But be it either way, the result is the same. If before, the debt to the plaintiff in respect of such payments, was a simple contract; and this, as a bond debt, is first to be paid. If after, the assets were before (105) appropriated by law and at the instant they were received, to the bond debt to the plaintiff. The residue after deducting this debt, was the assets to which other bond creditors could resort. When the debt becomes extinct by reason of the receipt of assets, it is extinguished for all purposes and as to all persons, as well co-obliger, as the heirs of the deceased obligor; for says Lord Holt in Wankford v. Wankford. Salk. 305, having assets amounts topayments, and another obligor in the bond cannot be sued. Being thus extinguished, it can never be revived by any subsequent acts of the administrator, such as the application of the assets to other debts of inferior dignity, or even of the same dignity falling due, or acquired by him, after the assets were legally applicable, and had been by the law applied to this bond.
This case having occurred prior to 1829, is not affected by the act of that year (ch. 22). Indeed, had it occurred afterwards, it is clear that it could not operate in favor of the plaintiff, if he paid off the bonds after he obtained letters of administration; because the statute only gives to demands, paid by the surety, the dignity, in his hands, which they had in those of the original creditor, and as bonds held by the original creditor they were postponed to the right of retainer in the plaintiff of the debt due to himself. For the same reason it is at least doubtful whether the law would not be the same, had the plaintiff paid the bonds before administration; though, possibly, in that case, he might be considered as then holding them as bonds *87 due to himself. But upon that question, the Court gives no opinion; as the facts to raise it are not found in the case.
PER CURIAM. Judgment affirmed.
Cited: Coltraine v. Spurgin,
(106)
