52 N.C. 216 | N.C. | 1859
The following are the facts of the case: The assignor, Martin Towe, at November Term, 1856, of the Court of Pleas and Quarter Sessions for Perquimans County, obtained judgment by default against James L. Ball and the defendant, William Felton, as administrator of one Thomas B. Long, upon a partnership debt due by Long and Ball. Upon this, execution issued, and was returned, "Nothing to be found," as to said Felton as administrator, and a levy was made upon the property of James L. Ball. A venditioni exponas with a fi. fa. clause was (217) issued from August Term, 1857, against said Ball and Felton as *169 administrator. The sheriff did not make sale of the property of Ball levied upon, but, by agreement, Ball was permitted to sell it and place the proceeds in the hands of the sheriff, who therewith satisfied the execution, and endorsed it, "Satisfied in full." Subsequently to this, and previous to the return of the execution into court, the plaintiff therein assigned the same for value to George W. Brooks in trust for James L. Ball, whereupon the sheriff, at the instance and by direction of the counsel of the plaintiff in the execution, erased the endorsement above recited and returned the execution into court, "Forborne by the plaintiff." A scirefacias then issued at the instance of Towe to charge the defendant, Felton,de bonis propriis, for the payment of one-half the judgment rendered against Ball and said defendant as administrator of T. B. Long.
The defendant pleaded "Nul tiel record" and "Payment." His Honor held that there was no such record, and if such record were shown, the facts set forth constituted a payment and satisfaction. From this judgment the plaintiff appealed.
The point upon which the case turns is decided in Hinton v. Odenheimer,
By a reference to the facts there stated it will be found that it presents the case of a payment by a copartner of a judgment against the firm, and an attempt to enforce its collection against the bail of the other partners, and the case is put upon the point whether payment under such circumstances does not extinguish the judgment. It is there decided that it did, and that the judgment could not be kept alive by the intervention of an assignment. The case now before us rests on (218) the same ground, and must be decided in the same way.
One joint principal or one cosurety, as against another, has no equity to be subrogated to the rights of the judgment creditor. This equity subsists only in favor of a surety against his principal. A joint principal or a cosurety has an equitable right to contribution, but he has no such right to the use of the creditor's judgment to force collection of the whole. The creditor may regard all as principals (except so far as he is restrained by statute), and collect the whole out of any one, but it would be iniquitous to confer upon the associate debtor the same power.
We therefore hold that a payment made by one who is a principal obligor, or by one copartner of a partnership debt, is simply a payment. *170
The ruling of the court below to this effect is correct, and the judgment is
PER CURIAM. Affirmed.
Cited: Fowle v. McLean,
