Towe v. Felton, 52 N.C. 216, 7 Jones 216 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 216, 7 Jones 216

MARTIN TOWE to the use of G. W. BROOKS, assignee, v. WILLIAM FELTON, Adm'r.

One joint principal has no equity to be subrogated to the rights of a judgment creditor, as against his associate; so that satisfaction made by him can not be regarded otherwise than as a payment.

This was a soire eacias tried before SaüNders, J., at Spring Terni, 1859, of Perquiinons Superior Court.

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 Perquimons county, obtained judgment by default final, against James L. Ball and the defend? ant, William. Eelton, as administrator of one Thomas B. Long, upon a parnership 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 issued from August Term 1857, against said Ball and Felton, as 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, aud 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 scire facias then issued at the instance of Towe to charge the defendant, Felton, de bonispropriis, 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.” I-Iis 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 to this Court.

Wm. A. Moore, for plaintiff.

Jordan, for defendant.

Manly, J.

The point upon which the case turns, is decided in that of Hinton v. Odenheimer, 4 Jones’ Eq. Rep. 4ÜG.

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 ns, rests on the same ground, and must be decided in the same way.

One joint principal or one co-surety, 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 co-surety 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 tlie 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, ás simply a payment.

The ruling of the Court below, to this effect, is correct, and the judgment is affirmed.

Per Curiam,

Judgment affirmed.