Drake v. Coltrane, 44 N.C. 300, 1 Busb. 300 (1853)

June 1853 · Supreme Court of North Carolina

44 N.C. 300, 1 Busb. 300

J. M. A. DRAKE, ADM’R., &c. vs. WILLIAM COLTRANE, ADM’R., &c.

The 4th sec. of the Rev. Stat. ch. 113, which confers on the claim of a surety, paying the debt for which he is surety, the dignity, in the administration of the assets of the principal, which the debt, if unpaid would have had, applies to any such claim, Whether the payment be made before or after the death of the principal.

It appears from the transcript of the record that the plaintiff had obtained a judgment quando against the assets of the defendant’s intestate ; and this was a scire facias to renew the same, and suggesting that assets had come to the defendant’s hands. The following are the facts agreed between the parties :

Sundry Justices’ Judgments amounting to $250 and more were rendered against M. A. Causey, and William Coltrane, the defendant, became surety for the stay of execution. The money was collected from, and paid by Coltrane, prior to the death of Causey, which occurred in September, 1840. At November Term, 1840, of Randolph County Court, Coltrane administered on Causey’s estate ; and on the 4th of August, 1842, Benjamin Swain, the plaintiff’s intestate, obtained a judgment before a Justice of the Peace against said Causey, for $28.46, which amount, since the death of Causey, Swain had paid as his surety, on a judgment obtained before his death. The defendant suggesting a want of assets, the case was returned to Court for trial.

Coltrane had assets enough, and no more than enough to satisfy the debt due to himself. If he had a right to retain a preference to Swain’s debt, judgment to be rendered for the defendant; if not, for the plaintiff.

His Honor, Judge Settle, at Randolph, on the last Spring Circuit, being of opinion for the defendant, gave judgment accordingly j from which judgment the plaintiff appealed to the Supreme Court.

J. H. Bnjan, for the plaintiff.

No counsel for the defendant in this Court.

Pearson, J.

Revised Statutes, ch. 113, sec. 4, when a surety pays the debt of his principal, the claim of the surety against the personal representative of the principal, shall have the same priority against the assets as belonged to the demand of the creditor. In this case, the defendant, as surety of Causey, had paid a judgment rendered against Causey, to which the defendant had become surety for the stay of execution. The defendant clearly had a right to retain by force of the above statute. The fact that the money was paid by the surety before the death of the principal makes no difference. The case falls both within the words of the statute, which are very guarded, and the evil which it was intended to remedy.

PeR CuRIAM. Judgment affirmed.