42 N.C. 39 | N.C. | 1850
In 1842, the plaintiff, being indebted to the defendant, Jacob Bost, executed and delivered to him two several bonds, (40) one for the sum of $119, dated 13 January of that year, and payable one day after date, and another for $206.25, dated 6 January, 1842, and payable 1 January, 1843. In the Spring of 1844, the plaintiff and defendant, Jacob, entered into a partnership for making and vending a smut machine, the patent right to which, they purchased from one L. D. Childs, and for which they executed to him, three bonds, each for $1,000, payable six months after date; two of these bonds were discharged, jointly by the obligors, and the third by the plaintiff alone. The bill charges, that the defendant, Jacob Bost, for the purpose of avoiding the payment of his share of the last bond, given for the purchase of the patent right, and also the heavy losses incurred in the business in which they were engaged, transferred all his property to divers persons, and assignee over to the other defendant, Joseph Bost, the two bonds first mentioned, and dated the assignment as 21 August, 1847 — that the assignee took the bonds without paying any consideration, and with a full knowledge of all the above facts — and with a view to throw upon the plaintiff the payment of the whole of the judgment, obtained upon the third bond to Childs, upon which an execution was then issued — and the last payment, made by the plaintiff on it, was on 4 September, 1847.
The bill further charges, that Jacob Bost has moved to the State of Mississippi, and is insolvent. The defendant, Joseph Bost, has sued the plaintiff on the two bonds, so assigned to him, taken out executions and threatens to levy on his property. The bill prays an injunction, etc.
The answer of Joseph Bost is filed 20 October, 1848. It denies, that the assignment of the two bonds to him by Jacob Bost was antedated or without consideration or with any fraudulent intention. On the contrary, he avers, that the assignments were made on the day they were dated, and that he paid cash for them, and denies that he (41) purchased with notice of any equity claimed by the plaintiff, or that he had any knowledge of the copartnership transactions, "but refers to the answer of his codefendant, when it comes in, in answer thereto, and as a part of his answer, and submits, whether if they be true, his rights are to be affected thereby."
The answer of Jacob Bost, the other defendant, is sworn to on 6 April, 1849, and filed at the Spring Term, 1849, of LINCOLN Court of Equity. This defendant denies that he transferred any of his effects to defraud any of his creditors — and avers that the notes in question were transferred to his codefendant for a valuable consideration, and that in cash — that he owed Joseph Bost for money borrowed, with *39 which he purchased a tract of land in Iredell County, which was afterwards sold by the sheriff, and purchased by the defendant, Joseph.
The plaintiff is clearly entitled to the aid of the Court, in restraining the defendant, Joseph Bost, from enforcing his judgment at law, at this time. By the purchase of the patent right of the smut machine and the agreement between the plaintiff and Jacob Bost, they became partners in the business of making and vending them. Great losses were sustained by the firm and many debts incurred, for which they were jointly and severally liable; all of which were paid by the plaintiff, as he alleges and not denied by the defendants.
Before entering into the partnership, Mosteller was indebted to Jacob Bost in the two bonds, the subject of this dispute, which were both assigned to the other defendant, nearly five years after they became due. One falling due on 14 January, 1842, and the other 1 January, 1843, and the assignment, as alleged by the defendant, was on 21 August, 1847. By the bonds of $1,000 each, given for the purchase of the patent right, the plaintiff and defendant, Jacob Bost, were each a principal debtor to the obligee — but as between themselves, each was a surety for the other to the amount of one-half of the (42) money due on the bonds. In equity, a surety, in respect to this liability, is regarded as a creditor and has a right to all his privileges as one. Here, the equity of the plaintiff arises from the inability to pay or insolvency of Jacob Bost. The right of the latter to assign the notes in question was lost, when he became unable to exonerate the plaintiff from the payment of the portion of the $1,000 bond, for which the plaintiff was his surety and which he has paid. The debt, which Mosteller owed him, ought, in good faith, to have been retained by him as an indemnity in part of his loss. As the notes then in the hands of Jacob Bost were liable to the equitable claims of the plaintiff against him, it would be contrary to just principles, that his assignee should be placed in a better position than he was: Williams v. Helme,
We repeat, the answers are neither frank, full, nor precise, and are manifestly evasive.
The interlocutory decree below, dissolving the injunction, is erroneous. The defendants must pay the costs of this Court.
PER CURIAM. Reversed.
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