41 N.C. 31 | N.C. | 1849
This is an appeal from an order dissolving an injunction, and upon the pleadings the case is as follows: The plaintiff and George W. Brown and several other persons became cosureties for one Waugh to the Bank of Cape Fear, at Salem, by a note for $450, and in April, 1842, judgment was taken by the bank against Waugh, Dobson, Brown, and the other sureties; and from that time to the filing of the bill, in September, 1848, writs of fieri facias were regularly sued out and delivered to the sheriff of Surry, in which county the debtors lived. On 15 May, 1844, the defendant Prather purchased from George W. Brown a house and lot in Rockford, in Surry, at the price of $1,000, and took a conveyance in fee. At the time of the purchase, Prather inquired of Brown and the sheriff whether there were any executions against the property, and was informed by them that there were several, amounting to (32) upwards of $1,000, which they showed him; but that of the bank against Waugh and his sureties was not among them. Prather thereupon closed the contract, and paid the consideration money, and out of it Brown then paid the sum of $800 to the sheriff toward the discharge balance due on them. Prather took also, from the sheriff, a covenant that there was no other execution against Brown's property, and to indemnify him against it or them, if there should be any. Subsequently the property of Waugh was sold on executions for this and other large debts to the bank, and out of the proceeds a sum was applied to this debt, which reduced it to $276.08 on 18 February, 1845, and $10.80 for costs. Waugh then became insolvent, and so also did all the sureties except the plaintiff and Brown; and, indeed, Brown was insolvent and had no estate subject to execution for this debt, excepting only the house and lot, which he had sold to Prather, and which was subject to it, inasmuch as an execution was in fact out and in the hands of a deputy sheriff at the time Prather made his purchase, though unknown to him. On 8 May, 1844, the plaintiff and some other sureties for Waugh, not including Brown, requested the bank not to have Waugh's property then sold under the bank's executions, as it was thought by them that, with indulgence, Waugh would avoid a sacrifice of his property and be able to pay all the debts; and the bank acceded thereto, and also upon another subsequent occasion before the sale in February, 1845. Some time thereafter Prather, discovering that there had been an execution in the hands of the deputy sheriff when he purchased from Brown, and that alias and pluries writs had been regularly kept up, and that the sheriff was about to levy half the balance of this debt from the plaintiff and sell the house and lot for the other half unless he would pay it, applied to the (33) *36 bank to accept from him the sum due on the judgment and assign it to him, so as to give him the control of it, with a view to save himself from loss by having the whole of the money raised out of the plaintiff's property. The plaintiff then filed this bill against Prather and the bank, praying an injunction against all further proceedings on the judgment. Besides the facts on his behalf already stated, the plaintiff sets forth in the bill that as much of the money raised by the sale of Waugh's property as would satisfy this debt ought to have been applied to it; but that the bank had caused the same to be misapplied to executions on junior judgments, so as unlawfully and unjustly to leave the before mentioned balance apparently due thereon. The plaintiff further sets forth that Brown was and still is indebted to Waugh in a larger sum than the balance on the judgment, and that before his sale to Prather he had agreed with Waugh to pay on this judgment the amount of his debt to him. On the bill the injunction was granted as to the whole debt as prayed for.
The answers deny any misapplication of the money raised on the executions, and they state that in truth the sum, which was a very large one, was applied under the directions of an eminent attorney who represented the present plaintiff on that occasion, as well as others of the sureties for the several debts. The defendant Prather also denies that Brown was, to his knowledge or belief, indebted to Waugh, or under any engagement or legal obligation to pay anything upon the debt in question, except as one of the sureties therefor.
Upon the reading of the bill and answers and the motion of the defendants on the circuit, his Honor dismissed the injunction in toto, but allowed the plaintiff an appeal.
Although copies of the records of the judgments at law and the executions are not before us, yet it must be understood from the pleadings that, at the time Prather purchased from Brown, the house and lot were subject to the lien of a fieri facias for this debt, and that the lien has been kept up ever since; for a fieri facias binds from its teste against a purchaser from the debtor, and an alias and pluries
preserve the lien by relation to the teste of the first writ. Gilkey v.Dickerson,
But the Court likewise holds that, as to all but the one-half, the injunction ought to have been dissolved. The grounds on which relief is sought as to the other half are completely answered. As to the application of the money arising from Waugh's property, the question was one properly for the court of law, and the plaintiff ought to have sought his *39 redress there. But without recurring to that, the plaintiff has made no case on the point, for he does not specify the various executions and point out the misapplication of which he complains, and he only alleges in general terms that the money was improperly applied to younger executions. That is denied by the defendants in general terms also, and, besides, they say that the proceeds of the sale were distributed among the executions under the direction of an attorney who represented the plaintiff as well as the sureties for the other debts.
In like manner the other ground fails the plaintiff upon the facts. The defendants deny, as far as they can, that Brown had engaged with Waugh to pay this debt, or that he was indebted to Waugh at all. We need not, therefore, now inquire what the equity would be between the plaintiff and Prather had there been such indebtedness or engagement on the part of Brown, unknown to Prather. Leaving that point, if there be anything in it, for the hearing, if the plaintiff should think it worth his while to proceed to proof on it, it is sufficient at present to say that the facts are denied in the answers, as far as the defendants know or believe; and therefore the decree must be upon the supposition that those (38) facts do not exist.
The decree must be reversed, with costs in this Court; and the motion of the defendants for a dissolution of the injunction allowed as to one-half the sum due on the judgment; and as to the other half, the injunction must be continued to the hearing.
PER CURIAM. Decree accordingly.