22 N.C. 395 | N.C. | 1839
The cause is brought to hearing without evidence, upon the bill, answer, and replication; and from the pleadings the case is as follows: [His Honor here stated the case as above, and then proceeded.] *323
Upon the argument, counsel for defendants placed not much stress on the defenses brought forward in the answer; and we think very properly, as they are clearly insufficient. In the first place, the sheriff's sale is not bar, even if a legal title had been the subject of it, as the purchaser only succeeds to the defendant in the execution, (397) and is affected by all the equities against him. Freeman v. Hill,
Precisely on the same footing stands the purchase of the son from the father himself, which was of an equity only. It is only the honest purchaser of a legal title whom equity will not disturb. If the purchase be of a legal title, but with notice of an equity in another, or if it be only an assignment of an equity, with or without notice of a prior equity in another person, in either case the estate must, in the hands of a purchaser, answer all the claims to which it would have been subject in the hands of the vendor. Between mere equities, the elder is the better.
Against the present defendant, then, the plaintiff is entitled to all the relief which this Court would have given him against the original purchaser, for whom he was surety. We have, during the present term, in Green v. Crockett, ante, 390, applied the equity between principal and surety to a state of facts substantially the same with the present, and decreed for the sureties; and in so doing we have laid down no new principle nor made a novel application of an old one. Neither the purchaser nor his assignee could get the title, without paying the purchase money; and if the surety paid it, the vendor ought not then to convey, but hold the title for the indemnity of the surety, who has a right to it by substitution. But when the principal is insolvent, the surety, although he may not have paid the money, has an immediate equity to subject the land, because that has then become in fact the only fund to which he can have access, as between it and the surety, as it were, the principal debtor, and not simply a collateral security. We are not speaking of the rights and duties of the creditor and surety as between themselves, but those which arise between the surety and his principal, or the (398) principal's assignee. As to these last, there is a plain and strong equity, when it is admitted or ascertained that the original debtor is personally disabled from furnishing any means for the exoneration of the thing pledged, that such pledge should forthwith be applied to the purposes for which it was created, in discharge or diminution of the surety's responsibility. *324
It was, however, insisted for the defendant that his father was a necessary party, and that the plaintiff cannot have decree without reviving the suit against his heirs. There are two answers to this objection. The one, that the defendant is stated by both the bill and the answer to be the assignee of all the interest his father had; and, therefore, the latter is not a necessary party, as there could be no relief decreed against him; and the only effect of having him before the court would be to conclude him. Thorpe v. Ricks,
We think, therefore, that it must be referred to the master to inquire what is due for principal and interest of the debt, for which the plaintiff is liable, as stated in the pleadings; and that it must be declared that the land, also, mentioned in the pleadings, is liable for the sum that may thereupon be found due, and for the costs of the plaintiff in prosecuting this suit; and if the defendant shall not pay such principal, interest and costs, within some reasonable time, it must be ordered that the clerk and master of Mecklenburg sell the land, and out of the proceeds pay, in the first place, the principal money and interest due on said debt; and in the next place, the said costs if sufficient therefor.
PER CURIAM. Decree accordingly.
Cited: Winborn v. Gorrell,
(399)