Norfleet v. Cotton, 16 N.C. 334, 1 Dev. Eq. 334 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 334, 1 Dev. Eq. 334

Thomas J. Norfleet v. Goodwin Cotton and William Brittain,

From Bertie.

Where an administrator and one of the sureties to the administration-bonds, were next of kin to the intestate, and uppn a suit on the bond by an administrator de bonis non, a stranger also a surety, was alone subjected ; held that he had a right in equity, to retain the share of the principal to indemnify him in full, and that of his co-surety, to equalize the loss. And that having satisfied the judgment, he had in equity, a right to recover back the shares of his principal and co-surety.

The assignor of a term for years has, in equity, no lien upon the land for the money agreed to be paid, as the consideration of the assignment.

The case as it appeared upon the pleadings ar.d the report of the Master, was that Henry Johnston died intestate, and that administration upon his estate was committed to one Alexander 8. Johnston, who gave bond for the faithful discharge of his duty, with the Plaintiff and one William W. Johnston, as his sureties — that among other personal estate of the intestate, the administrator sold two terms for years, amounting in all to the sum of 85,135 50 — that the said terms were purchased by William W. Johnston, who was a brother of the intestate- and also of the administrator Alexander S. Johnston and the co-surety of the Plaintiff, for the sum of 5,089 dollars — that the said William W. Johnston never paid for the said terms — but had sold a part of them to one Joseph S. Pugh, who had not paid the whole of the purchase money — that William W. Johnston died having made a will, whereof he appointed the Defendant Brit-tain executor, who liad never paid any part of the original purchase money for the said terms, and still retained possession of a part of them — and never had received tiie balance due from Joseph S. Pugh on his purchase from William W, Johnston. Alexander S. Johnston the administrator of Henry Johnston, died in tes late, and administration upon his estate had been mitted to one David Clarke. — That tiie Defendant, Cotton had taken out letters of adminstration upon the goods of Henry Johnston, not administered by Alexander S. ston, and brought a suit on the administration bond executed iiy Alexander S. Johnston with the Plaintiff’ and William TV, Johnston as sureties, and had assigned as a breach of that bond, that Alexander S. Johnston never had accounted with, or paid over to tiie next of kin of Henry Johnston any part of the beforementioned sum of S3,135 50 — that judgment had been thereon obtained for ihe Plaintiff at law, against the present Plaintiff, for the sum of $5,571 25, — that the issue of fully administered had been found for Clarke, the administrator of Alexander 8 Johnston, and for the Defendant Britlain, the executor of Wiliam W. Johnston — and that the Plaintiff had been compelled to discharge the whole of the said judgment, the estates of Alexander 8. & William W. Johnston, being insolvent. That Henry Johnston died without issue, leaving five brothers and sisters, among whom were Alexander 8. & William W. Johnston, who were entitled to two-fifth of the recovery made by the Defendant Cotton — that the estate of Henry Johnston was not at all indebted, and that the amount recovered by the Defendant Cotton, remained in liis hands subject to distribution.

The Plaintiff sought 1st, to have the shares of Alexander 8. & William W. Johnston, refunded to him for his indemnity, and 2d, to subject the residue of the leasehold interest in the hands of the Defendant Brittain, and the debt due the latter by Joseph S. Fngh, for the purchase of part of it, to the satifactidn of the debt due the Defendant Cotton; to whose rights he claimed to be substituted^

The case was submitted without argument, by Hogg, for the Plaintiff, and by Muffin, for the Defendants.

Henderson, Chief-Justice,

after stating the case as above set forth, proceeded, I think that the Plaintiffs equity to have an indemnity from two-fifth of the estate of Henry Johnston, now in the bands of the Defendant Cotton, to which Alexander 8. and William W. Johnston, , . . are entitled, 13 quite obvious. The action brougnt on (|)e administration bond was in reality, the suit of the next of kin of Henry W. Johnston» The Governor, in whose name it was brought, was a mere trustee for them, and the administrator de bonis non, their agent. Alexander 8. Johtsion, can have no claim to an indemnity for his own mismanagement, against his own surety for the faithful discharge of his duty, yet, in reality, as regards his fifth, the action on the bond was of that character, and for that purpose. Nor lias William W. Johnston a right to seek from his co-surcty an indemnity further than for one-half of the burden j and it will exhaust, as it appears, the whole of his one-fifth, to equalize the burden of the co-surety. There can therefore, be no pretence for sustaining the action, either for the benefit of the principal Alexander 8. or the co-surety, William W. — -~ And if the action ought not to have been sustained, the circumstance of the money being paid, cannot alter the rights of the parties in this Court, where the equity set tip afforded no protection at law. The administrator de bonis non, must pay to the Plaintiff the two-fifth parts of Alexander and William.

As to the claim set up to the leasehold estates, in the hands of the executor of William Johnston, and the money due from Pugh, for the purchase of part of them from William Johnston, I can perceive no higher claims to them, on the part of the Plaintiff, than those of any other creditor of William Johnston. The payment of the purchase money by the surety gives him no specific lien $ and even had he the Men of a vendor, that I believe has never been held to extend to chattel interests. As far as I can perceive at present, as to any thing except the two-fith parts of Henry Johnston’s estate, the Plaintiff must stand as a general creditor.

Per Curiam.

— Let the decree he entered accordingly.,