23 N.C. 216 | N.C. | 1840
In 1831 one Norfleet and the present defendant executed a bond to the plaintiff for $101.50, on which a warrant was sued out against both of the obligors on 27 May, 1837. On 1 June following, Norfleet, by deed (to which the plaintiff and one Valentine were also parties) conveyed to Valentine personal property of value sufficient to discharge the debt and costs, upon trust that if Norfleet should not pay the debt before 15 October following, Valentine should at any time thereafter sell the property and discharge the debt. A payment of $50 having been before made, the plaintiff, on 30 June, 1837, took judgment for the balance due on the bond and costs. After the execution of the deed Norfleet retained possession of the property, using and disposing of it as his own. In October he requested the plaintiff to have a sale made under the deed, and raise his debt, as he said the defendant was uneasy. The plaintiff said he would, but nothing was done until after the death of Norfleet, insolvent, in November, 1837, when Valentine sold such effects as Norfleet had not consumed or sold, and applied the proceeds thereof towards the satisfaction of the plaintiff. There was still a balance due on the judgment, for which the present suit was brought. Besides other pleas, the defendant pleaded specially that he was the surety for Norfleet in the bond and judgment given thereon, and that the plaintiff, without his privity, took the deed of trust, as above mentioned, as a security for his debt, and thereupon agreed to give time to the principal until 15 October, 1837, for payment, and also had allowed Norfleet to waste and convert the property conveyed by said deed to his own use; whereby the defendant was discharged.
On the trial, the presiding judge gave his opinion that the facts set forth in the special plea, if true, did not discharge the defendant, who did not undertake merely to see that Norfleet should pay the debt, but, by executing the bond, became legally and directly bound therefor, as much so as Norfleet himself. Under this advice, the jury found a verdict for the plaintiff, and from the judgment thereon the (218) defendant appealed.
Without adverting to the circumstances that the first judgment was taken against the principal and the surety, after the execution of the deed of trust by the former, and the agreement of the creditor to *168
indulge, we should concur in the opinion of his Honor, regarding the suit as being brought on the original bond, instead of the former judgment. The circumstances, if unanswered, might create an equity, of which the defendant might have the benefit in another jurisdiction. But a court of law deals only with legal liabilities and legal discharges. There has been but one doctrine held on this subject by the courts of this State. King v.Morrison,
PER CURIAM. No error.
Cited: Gatewood v. Burns,
(219)
