McDowell v. Butler, 56 N.C. 311, 3 Jones Eq. 311 (1857)

Aug. 1857 · Supreme Court of North Carolina

56 N.C. 311, 3 Jones Eq. 311

CHARLES McDOWELL and another, Adm'rs. of JOHN E. BUTLER, against RACHEL BUTLER.

Where a bond was made payable to two, by several obligors, and one of the obligees became the administrator of one of the sureties, it was Held that, although the remedy as to such deceased surety was suspended at law, yet the right of the obligees to sue the principal obligor in a court of law was unimpaired.

The bill alleges that the plaintiffs, as administrators of John E. Bntler, sold the property of their intestate at public auction, and that the defendant became the purchaser of some of it at the price of $1,777,50, and gave them her sealed obligation for the same, with TV. 0. Butler, Thomas Butler and another, as sureties ; that she made a deed of trust to secure the payment thereof, and by the sale of the property therein contained, $1,207,16 was made, and applied as a credit upon the said bond, and that the residue of the said bond is still due, and owing to them as administrators as aforesaid ; that Thomas Butler and W. C. Butler are dead, and their estates insolvent, and that the other surety, one Ilarbison, is also dead, and left no property; that their intestate’s estate was much involved in debt, and that the assets which came to their hands were insufficient to liquidate the debts owing by their intestate ; that claims to the amount of some three or four thousand dollars, against the estate of Samuel P. Carson* had been placed in the hands of certain attorneys in the State of Arkansas, for collection, and that, presuming on the availability of the said claims, they had suffered judgments to be entered against them, beyond the amount of the assets that came to their hands, and that part of the said judgments is still unsatisfied; that in consequence of the indulgence extended to them by the creditors of the estate, they were enabled to indulge the defendant on her note, and that hoping that the estate of S. P. Carson would be good, they forbore to enforce the collection against her, but they have been disappointed in the hope of collecting the said debt, and only the sum of $2,500 has been realised, and that the same has been applied to discharge the debts against the estate of their intestate ; that the plaintiff Charles McDowell, with another, became the administrators of William C. Butler, and in consequence of the said administration, the remedy in behalf of the plaintiffs on thei said bond, in law, was suspended, and there being a necessity for the residue of the amount of said bond, for the payment of debts as aforesaid, they pray that the defendant may be compelled, in Equity,'to discharge the remainder of her bond.

Defendant demurred, and the cause being set for argument on bill and demurrer, the same was sent to this Court by consent.

Avery, for plaintiffs.

Dickson, for defendant.

Battle, J.

The ground upon which the defendant’s counsel places her demurrer, is, that the plaintiffs have a full and complete remedy at law against her ; and we cannot see how the position can be successfully assailed by the plaintiffs. The bond given by the defendant and her sureties, is either in itself, or by force of the act of 1189, (Rev. Code, ch. 31, sec. 84,) joint and several, and the plaintiffs had a perfect right to sue the defendant alone at law, notwithstanding the suspension of their remedy against the estate of William C. Butler, one of the obligors. The case does not come within the principle upon which Sanders v. Bean, Busb. Rep. 318, was decided, upon the supposed analogy to which, we have no doubt, the present bill was filed. In that case the relator, who was, in law, regarded as the plaintiff in the action, never had any right to sue in any court of law, upon the bond. Ey executing the bond as one of the sureties of the constable, he disabled himself from doing any thing, by which he could have a remedy at law upon it. The Court say expressly, that “ his right to sue depends upon the fact, that the bond was, in effect, delivered to him, or that a contract was made with him ; which could not be; as he could not, either by himself or with others, deliver the bond to himself, or contract with himself.”

In the case now before the Court, no such objection could have been made against the bond when it was first delivered. The plaintiffs, then, had a perfect right to sue at law, all the obligors, or any one or more of them. When one of them, William C. Butler, died, and another obligor, together with one of the plaintiffs, took out letters of administration on his estate, the right of the plaintiffs to sue them was indeed suspended, but it in no wise affected their remedy against the present defendant, who was the principal obligor. She could have no equities for contribution against her own sureties, and there was, therefore, nothing, either in the technical forms of proceeding at law, or in the nice and refined principles of equity, to prevent a court of law from affording to the plaintiffs a full and complete remedy against the defendant. She was undoubtedly bound by her bond when it wras originally executed, and the act of plaintiffs, or either of them, in suspending, or even in extinguishing their remedy at law against one of her sureties, could not suspend or extinguish the right to sue her.

The demurrer is sustained, and the bill dismissed with costs.

Per CuriaM, Bill dismissed.