| N.C. | Jan 5, 1867
According to the allegations of the bill, one J. B. Whitley, on 10 April, 1857, executed to one Eli Cherry a deed of trust for certain personal and real estate, including a house and lot in Williamston (the subject matter of this bill), to secure the payment, among other debts, of a note given by him, with Cherry and the defendant William Thigpen as sureties, to one John B. Griffin. On 22 April, 1857, Whitley executed another deed in trust, in which he conveyed said house and lot and other property to the defendant, Simon T. Price, to secure the debts named in the deed to Cherry, besides others; and providing that if said debts were not paid by 1 January thereafter, Price should sell the house and lot, with the other property, and pay the debts, etc. Neither Cerry [Cherry] nor Price, as trustee, took into possession or sold the house and lot, but Whitley "conveyed the same to one Bennett S. Baker, or upon some agreement placed said Baker in possession" thereof. Baker afterwards died and his widow, the defendant Mary, and the defendant Frank A. Bobbitt, whom she has since (147) married, are in possession of the house and lot. The debts which the deeds of trust were made to secure have been paid, with the exception of the one due to Griffin, above set forth.
Cherry made a will and died in 1859, and Griffin and Whitley are dead intestate.
The parties are William A. Thigpen, executor of Cherry; W. H. Lee. administrator of Griffin; Mary E. Cherry, widow and devisee, and William S. and Lawrence Cherry, heirs-at-law and devisees of Eli *109 Cherry, and William Thigpen, complainants, and Simon T. Price and F. A. Bobbitt and wife, Mary, defendants.
The prayer is that a new trustee be appointed in the place of Eli Cherry; that Bobbitt and wife be required to surrender the possession of the house and lot; that the same be sold and the proceeds applied to the Griffin debt; that Price, as trustee, be required to render an account of the property, etc., that may have come into his hands as trustee, and pay the Griffin debt to the administrator; and for further relief. There is no error in the order appealed from.
The demurrer is general. Neither of the grounds taken at the bar in support of it is tenable.
Sureties may file a bill to have a debt paid by the principal, or out of his estate, for their exoneration, before they are forced to pay the debt. This is settled. Miller v. Miller, ante, 85. It follows that, although the bill might have been sustained without making these parties complainant, it is not error to join them as complainants in a bill to enforce a trust for the payment of the debt.
The second ground is also untendable.
The allegation of the bill is that Whitley conveyed his resulting (148) trust to Baker, under whom the defendants Bobbitt and wife are in possession; and taking that to be so, their possession is not adverse. They may be entitled to the excess of the proceeds of sale after paying off the debts secured by the rust deed.
PER CURIAM. Demurrer overruled.