| N.C. | Dec 5, 1848
Lead Opinion
The following case agreed was submitted to the court:
Jesse Harper held a note on defendant's intestate as principal, and plaintiff as surety, on which suit was brought against (53) defendant and plaintiff, and the writ, executed on both, returned to Randolph County Court at May Term, 1843. The defendant, on return of said writ, had assets sufficient to pay said debt, but craved nine months before pleading. Whereupon the said Harper discontinued as to the defendant, and at August Term, 1843, took judgment on said bond, which judgment plaintiff paid on 7 February, 1844, then amounting to $601, to recover which this suit is brought.
Between the May Term, 1843, of said County Court and the bringing this suit defendant paid out all the assets in satisfaction of bonds of his intestate on which writs were issued after May Term, 1843, and recovery had before this suit was instituted.
If on the foregoing statement of facts the court should be of the opinion with the plaintiff, he is to have judgment for $601, with interest from 7 February, 1844. Otherwise, judgment for defendant that he has fully administered.
It is considered by the court, upon the case agree; that the amount of the plaintiff's debt is $601, with interest from 7 *47 February, 1844; that the defendant hath fully administered the assets of his intestate, and that he recover his costs against the plaintiff, to be taxed by the clerk.
It is further considered by the court that the plaintiff recover his debt and costs of suit out of the real estate of the defendant's intestate, in the hands of his heirs at law; from which judgment the plaintiff prayed and obtained an appeal to the Supreme Court. This is an action of debt. The only question presented by the case is as to the manner in which the defendant has disposed of the assets of his intestate. It is admitted that they have been exhausted in the payment of the just (54) claims of the creditors. The plaintiff contends that in administering them the defendant has been guilty of a devastavit, and must answer his claim de bonis propriis. The situation of an executor is one full of peril, and it often requires great caution to discharge correctly his trust. The law — whether wisely or not, is not now to be inquired of — has made a discrimination between the debts of a deceased person, as to the order in which they shall be paid; and if, in discharging them, this order is knowingly violated by the executor it subjects him to the liability of paying, out of his own property, the creditor who has been injured. Among debts, however, of equal dignity it is his privilege to pay which he chooses, and, if there be not assets sufficient to pay all, he does no legal injury to any one. The privilege is taken from him by the bringing of an action at law or the commencing of a suit in equity by the equal creditor. His hands are then tied as to a voluntary payment, without suit. In this State all bonds, bills and promissory notes and liquidated accounts, settled and signed, stand in the same rank, and have precedence, in the course of administration, over open accounts and verbal promises or liabilities created by operation of law. If we understand the ground upon which the plaintiff attempts to charge the defendant with a devastavit, it is that the bringing of the suit by Mr. Harper so fixed the assets in the hands of the defendant that he could not pay a debt of equal dignity without a violation of his duty. So far as Mr. Harper was interested the position is correct, but unfortunately for the argument, Mr. Harper has no longer any interest in this matter. At the return term of his writ he entered a nol. pros. as to the defendant, cut himself loose from him and abandoned, so far *48 as his prior claim extended upon the assets of Hoover, all claim upon the defendant. Immediately upon this discharge (55) the administrator was at liberty to pay any debt due from the estate, of equal dignity, and this privilege continued until suit was brought against him upon some claim of the same or some higher class. By the common law a surety who pays the specialty debt of his principal, whether with or without suit, has a claim against his principal for so much money paid to his use. 2 Wil. on Exrs., 669. The law is altered with us as to the administration of assets. Rev. St., 113, sec. 4. In such case the statute declares, "the claim of the surety against the executor or administrator of his principal shall have the same priority against the assets as belonged to the demand of the creditor." The most this action has done is to transfer to the surety, against the executor or administrator, the right of him whose claim he has discharged. Beyond this it does not go, nor did it intend to go, and before the privilege conferred by it can be claimed the debt must be discharged by the surety. This was not done by the plaintiff until after all the assets had been administered in the payment of bond creditors. His right was not and could not be greater than Harper's. And by the nol. pros. the latter had abandoned his lien, and stood upon an equality, and only upon an equality with other bond creditors, as if he had not brought that action. Until he commenced upon his bond another suit, the right of the administrator to prefer another creditor, equal in degree, was not disturbed. 1 Saun., 332 a, n. 8. In the case before us the judgment against the plaintiff was obtained at August Term, 1843, of Randolph County Court. After that term it was discharged by him on 7 February, 1844. He commenced this action 10 February, 1844, after the exhaustion of the assets in the payment of debts of equal dignity.
The defendant, in paying those debts, violated no duty, and was guilty of no devastavit.
(56) His Honor, after giving judgment in favor of the defendant, upon his plea of fully administered, went further, and gave judgment that the plaintiff recover his debt and costs of suit out of the real estate of the defendant's intestate in the hands of his heirs at law; from which judgment plaintiff appealed. We are, therefore, to consider that the latter judgment was not asked for by the plaintiff; the case does not so state, and we cannot suppose, in the absence of all evidence in the case, to the contrary, that he appealed from his own judgment. *49
This was an error on the part of the presiding judge, for which the judgment must be reversed and the case remanded, that the plaintiff may take a judgment quando, or against the land at his option, or neither.
Addendum
The question upon the case agreed depends simply upon the operation of the act of 1829, on the plea ofplene administravit. It enacts that the claim of a surety who pays the debt shall have the same priority against the assets in the hands of the principal's executor as belonged to the demand of the creditor, which was thus discharged. Rev. St., ch. 113, sec. 4. The whole effect of that is to keep up the dignity of the debt, though paid, for the benefit of the surety, as it was in the hands of the original creditor. Chaffin v. Hanes,
For the reasons given by him, I am also of opinion it was erroneous, without a prayer to that effect, to give judgment in such a form as to compel the plaintiff to go against the lands descended; and that, to that extent, the judgment must be reversed, so as to let in the plaintiff to take that judgment or one quando, at his election. And to enable him to proceed on either of those judgments the more conveniently, the case must be remitted to the Superior Court, so that the judgment may be entered there, in order that the scire facias on it may issue from that court instead of this.
PEARSON, J. I concur in this opinion.
PER CURIAM. Remitted to the court below. *50
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