The fund held by the defendant Gooch, administrator, which is the subject of this controversy, is the proceeds of the sale of a tract of land that once belonged to Mrs. Virginia A. Johnson. All parties concede that it is liable for her debts. The defendants R. B. Peebles and W. V. Peebles assert title to the balance that will remain after the payment of her debts, and found their claim thereto on the fact that they hold by purchase at execution sale the estate of James Johnson in said land, and this seems to be conceded. The plaintiffs base their claim to the fund upon the allegation that the land was not the *68.property of James Johnson, and that under the will of Mrs. V. A. Johnson it was theirs, subject only to the payment of her debts. The defendant Gooch avers that if the fund does not belong to his co-defendants there are other persons besides the plaintiffs who have an interest in it, and that he should be protected from the possible demand of those claimants before he is required to pay over the fund.
Throughout the will of Mrs. Johnson there is, we think, the clearly expressed intent to provide that her husband shall have and enjoy all her estate, and there is effectual provision made to prevent the disturbance of that enjoyment of it by any creditor of her husband whose debt was contracted before her marriage to him. She seems to have been determined, for some reason, that no one of that class of his creditors should get satisfaction of their claims against him from any property that had belonged to her. The provisions of the first five, sections of her will must be considered as controlled in their operation by the sixth and last section, which plainly declares''that if her husband shall pay off and discharge all the debts contracted by him prior to his marriage to her, he shall take and hold all the estate “absolutely for his own sole use and benefit.”
If, therefore, all the debts of James Johnson which belonged to that class were discharged in his life-time, eu instanti the property thus devised became his absolutely, the danger against which she was so careful to guard her estate being thus destroyed, and there being no further reason, as she seems to have thought, why he should be kept out of the absolute ownership of that property which she wished Him to enjoy.
We think that the evidence of plaintiffs’ witness Ellis (objection to the admission of which was withdrawn here), while it established the fact that James Johnson was, in (September, 1859, a judgment debtor to him, the debt being *69of the class mentioned above, also proved that that judgment was fully discharged in the following March by the levying on and selling of cotton, and the purchase of it by the judgment creditor, the witness, at a price sufficient to pay the debt, interest and cost, as stated by him. That ante-nuptial debt was thereby extinguished. Wall v. Fairley, 77 N. C., 105, and cases cited. And if it be true that thereafter he was sued by a person who asserted that the cotton so sold was her property and not the property of James Johnson, the defendant in the execution, and damages were recovered of him, that created no liability on the part of the defendant to pay again the judgment that had been discharged, but merely gave to the judgment creditor a cause of action against the judgment debtor, under section 27 of chapter 45 of the Revised Code (The Code, §468), for the sum so recovered of him. No such action was brought. If it had been, and had been successful, it would not have fixed James Johnson with an ante-nuptial liability.
The extinguishment of this judgment and the discharge of all his other liabilities of that class had the effect to invest him with the absolute title to the estate of his wife, and it would be unreasonable to declare that he had lost that title because a new cause of action arose against him, though it was in some degree connected with an ante-nuptial debt. We think, therefore, that his Honor erred when he instructed the juiy.that if’they believed the evidence of Ellis they must find that the ante-nuptial debts of James Johnson had not been paid off and discharged by him in his lifetime. The only debt of that class that is in dispute, as it seems, was discharged by the sale of property alleged to belong to him. That was a discharge of it “ by him.”
If the defendant. Gooch is advised that there is a defect of parties he should file a demurrer in which he should state what persons should be brought in, their presence *70being necessary to a determination of the controversy. This course is prescribed if the defect appears on the face of the complaint. If it does not so. appear he should in his answer set out the names of the persons who he is advised are necessary parties, and their interest in the matter in controversy, to the end that the Court, being thus informed .either by his answer or demurrer, may decide, before- the trial of the issues of fact or law is determined, that all necessary parties are present. The defendant Gooch has not in either of these ways brought up this cpiestion. He is the holder of the fund. The other parties, plaintiff and defendant, are adverse claimants of it. Since, for the reasons above stated, there must be a new trial of the action, he will have an opportunity thus to protect, himself from other claimants, either of the whole fund or of parts of it, if any there be.
We deem it proper to say that the appointment of J. T. Flythe to be trustee in the place1 of Catherine J. Johnson, deceased, is binding only on that one of the daughters of James Johnson who is the plaintiff here and asks for his appointment. • Error.