43 N.C. 62 | N.C. | 1851
This cause was before the Court for hearing at December Term, 1849, and is reported
recovered judgment thereon in April, 1846, for $225.28 besides costs, and afterwards received the same. From that sum the clerk deducted interest from the time of the defendant's sale, which was in April, 1843, which left the net proceeds of the judgment as of April, 1843, the above sum of $193.21, with which the defendant is charged as a part of the trust fund, so as to make the aggregate of $1,777.40. On that sum an allowance of 2 1/2 per cent is made for commissions, leaving the net amount applicable to the debts in the deed $1,733 on 17 April, 1843, and the debts are reported to have been $2,936.13 on that day.
Both of the parties except to the rate of the commissions. The plaintiff also excepts to any commission on the sums applicable to the debts for which the defendant was liable as surety; and the defendant further excepts for the omission to allow commissions on the sums paid to the sheriff on the executions. The Court sees no error in either of the points thus excepted to. It was for the defendant's own advantage that he made the sale, instead of the sheriff, for the satisfaction of the executions; and there is no reason why, by doing so, he should subject the fund to a double commission — one to the sheriff and one to himself — on that amount. The clerk has not allowed the defendant commissions on his debt as a disbursement, but only on the balance of the amount of sales; and the plaintiff has no reason to complain of that, as some one ought to be compensated for the trouble and responsibility of making the sales and receiving the money, and the rate allowed by the master is that given by law to sheriffs for similar services. Therefore, the first exception of each party is overruled.
(64) The defendant further excepts to the charge of $193.21 for the proceeds of the judgment against Hudson; and the plaintiff excepts because that charge is not $435, instead of $193.21. It may be remarked, in the first place, that the plaintiff's exception proceeds on a mistake as to the debt of Hudson. The recovery was only $225.28, and the residue of the $445 was for the plaintiff's costs in that suit, and, of course, would not be chargeable to the defendant in this account, as they only reimbursed his outlays in the prosecution of the suit, and the *49 defendant has no credit for those expenditures. But that is not material, as the Court holds that the plaintiff is not entitled to any part of the sum received from Hudson. These parties were not cosureties for any one of the debts, and the only connection is that one deed of trust for certain property was given as security for separate debts to them respectively. There was, therefore, nothing in law or conscience to prevent either of them from obtaining from the debtor at any time a separate or further indemnity against loss to himself. If, indeed, the defendant had got such a security to the full amount of his liabilities, equity would have required him to resort to that and leave the other for the plaintiff's benefit. But after the application of the defendant's share of the sales under the deed of trust and the whole of the Hudson money a considerable balance remains due to him; and certainly he is not bound to communicate to the plaintiff the benefit of his separate security in a way to defeat himself of any part of his demand. In this case, indeed, it does not appear that the claim on Hudson was assigned to the defendant until after the sales had been made under the deed of trust and the loss ascertained. But it is rather so to be inferred from the facts, as far as they can be seen; and if so, it was entirely competent to each party, even if they had been originally cosureties, to provide in any way he could for his separate satisfaction or security, since after the loss (65) each surety is a separate creditor for the amount paid by him out of his own funds. These parties, however, did not stand in that relation, but were separate creditors or sureties from the beginning, and the one was not bound in any degree to take care of the other. Therefore, the plaintiff's second exception is overruled, and that of the defendant allowed; and it is referred to the clerk to compute the sum due to the plaintiff upon the basis of his former report, corrected as now pointed out.
Although the defendant as trustee would not generally be chargeable with costs, yet in this case the controversy arose entirely upon a question as to his own personal interests under the deed, and as the result of that is against him he must, according to the general rule, pay the costs.
PER CURIAM. Ordered accordingly.
Approved: Cannon v. McCape,
(66)
