Sherwood ex rel. State Bank v. Collier, 14 N.C. 380, 3 Dev. 380 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 380, 3 Dev. 380

Gabriel Sherwood upon the relation of the State Bank, v. Probate Collier.

Where a surety in a joint note paid it, but took no assignment from the creditor, of a judgment previously obtained upon it against the principal debtor: Held, that the payment satisfied the judgment.

Debt upon a bond, given by one W. B. Green, upon taking out letters of administration upon the estate of Benjamin W. Caswell, to which the defendant was surety. The breach assigned, was the non-payment by Green, of a judgment recovered against him by the relators, upon a note of his intestate. Plea — Performance.

On the trial, during the last Spring Circuit, before Martin, Judge, at Wayne, the case was as follows: The intestate died in 1815, indebted to the State Bank by a note for $630, to which one Hvoks was surety; in the year 1816, judgment was recovered by the bank, upon this note against the administrator, W. B. Green, and an execution issued, which was returned nulla bona. In the year 1818, the hank also recovered judgment against the surety Hooks, which was satisfied by him in the year 1823. This action was commenced in the year 1829. Upon these facts, his Honor instructed the jury that the payment by Hooks barred the action. The plaintiff, in submission to this opinion, suffered a nonsuit and appealed,

J. H. Bryan and Mordecai, for the plaintiff,

contended, that the jury should have been directed to find for the plaintiff, if they should think that Hooks, when he paid the judgment against him, intended a purchase and not a satisfaction, and cited The Governor v. Griffin~ (Jlnte 2 vol. p. 352.) They also urged, that satisfaction of the judgment against the endorser, was not per se, satisfaction of that against Green, the administrator of the principal debtor, and for this was cited Clason v. Morris. (10 John. R. 524.)

An assignment of a security to one of the parties to it, is a satisfaction — ifitis intended to keep it on foot, the assignment should be to af stranger.

Gaston and W. C. Stanly, contra, were stopped by the court.

Ruffin, Judge,

after stating the case, proceeded as follows:

I suppose the present action is brought for the benefit of the surety Hooks, to avoid the effect of the statiite of limitations, or a disbursement of the assets subsequent to the judgment of the bank against Green, which might prevent an effectual recovery in a suit in Hooks’ own name.

But in the case stated, I think the present action yqually ineffectual. Since the statute of 4th Jinn, payment discharges a judgment, as effectually as entering satisfaction of record. Here there was full payment. It was inten ded as such by Hooks, and so received by the creditor. A payment by any one of two or more, jointly, or jointly and .severally bound for the same debt, is payment by all; and any of the parties may take advantage of it and plead it to an action brought by a satisfied creditor, or in his name by the sureties. It is true, that if a payment be not intended, but a purchase, there is a difference. But that can only be by a stranger, or by using the name of a stranger, to whom an assignment can bo made when there is but a single security, and that, one upon which all the parties are jointly liable. This is upon the score of intention, and because the plea of payment by a stranger is bad upon demurrer. If the assignment of a joint security be taken by the surety himself, there is an extinguishment, notwithstanding the intention ; because an assignment to one, of his own debt, is an absurdity. Where the securities are separate, as several bonds, or a several judgment upon a joint and several note, which is the case here, probably an assignment may be made to the surety himself, since he is nd. party to the judgment. But if that can he, clearly nothing hut a plain intention, evinced by an assignment, to keep up the judgment, can have that effect. Upon the face of the transaction, it is a payment, on which I£'oks could have maintained assumpsit in his own name. That shews that this suit is barred ; for if it he not, the original creditor, and the surety, may both recover the same debt.

The case of Hodges v. Jh-m-253”)"approved!

This case is just the reverse of Hodges v. Armstrong, (ante 253.) That suit was brought in the name of the surety> wh° I'ad taken an assignment to a stranger, and did not intend a satisfaction. This, in the name of the first creditor, who has received payment, and did intend a satisfaction. Both decisions are on clear grounds, and are supported by numerous authorities ; amongst them, I recollect Church v. Bishop, (2 Ves. 371,) and Wattington v. Sparks. (Id. 569.)

Per Curiam — Judgment aeeirmed.