Sloan v. Mendenhall, 60 N.C. 1, 1 Win. 1 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 1, 1 Win. 1

JAMES and ROBERT SLOAN, JESSE H. LINDSAY and JOHN A. MELANE vs. CYRUS P. MENDENHALL, Administrator of MRS MITCHELL and ROBERT C. LINDSAY and JOHN S. DARE.

A', dies in'wta'e seized of land in fan simple hi' t’ U Slate, which descend) to her heir fit law resident iri another fcfiate. IDs crodito'S here, me rat attnchmentrs _w! ioh tra levied on the land. and final judgments are obtained therein 'W.d writs cf Vendí tv-ni ICxfionas ism <i *ibelaud is sold by B, the adnji.v-trntor cf A. under ati order of the County Court, for the payroeni of the balds, of the intestate. - After pa\ ment oí them, the ad.«iin->tr,atoT is bound in equity to pay the rest due to the creditors who alian >.eu the land, qotwithstanding that the admiuh.tr.if nr has pui-I :t b; vr.fi r of the non-resident debtor to another bona fide creditor.

It appeared by the pleadings ami exhibits in this ease that Mr?, Mitchell was seized in fee of a house'and lot in tbe Town of Oreensboroiigb, and died intestate in the year 1855, and the defendant Mendenhall, was her administrator, and applied by petition to the County Court oí Guil-lord for an order to sell the house and lot alleging that the personal property was. insufficient to pay the in testate V debts; and such order being made the premises were sold and out oí the. proceeds of the sale, the debts were paid, and part of the residue was applied to the payment of u debt which the heir of Mrs. Mitchell, John 8. Hare, owed to- R. G. Lindsay, one óf the defendant’s, by the express order of Dare, and the other part was paid to J and R. Sloan 1 wo of the plaintiff’s, in part satisfaction of a judgment obtained by them against Dare as is hereinafter stated. In IMS Rare wr;a indebted to 11. G.LbuLay and J and It. Sloan were his sureros for the payment of the debt. Rare c.:e ub-d end delivered a deed purporting t-> convey bis ij-.ivh"< in the house and tot, stated therm.') to bed» <ri -if - in. loo in remainder after the death of Mrs Mitchell, which d. ed was áhsohití oi imf.ee, !> sb it w.m admitted, by t.bc d<-f nd mts t-h>-w It was intended by the parlies thereto to .be. a security for money ; and it was not regí ter ad ndii after i!n buw.) of ¡upen ymars or theie.-dmji.-. The dob i.dant Rmovv- indebted to J and it. Clo.ui, to Jesse It. TJnd-ay an-1 u* Joir<‘ A Mob-;,.:er and m í?'b! n> moved f o mn/íber Hv.h* who-e be has ever t hire resided, ificr Hr., Mil< lid ’a .leaib, before the s-ilo by her admin--isbvitor, Du, pfoVJffi. J and R. Mot n sued *»><t on attachment, aramr.l, Ram ns • o absent debtor, wb’eh ,vs levied cn ’Jio . ..ooí: min'd hit, and - r.> ,\;s; d"d lo pídg-nont, anda w; of 5 cn.-íW.-.o' J‘h':x as v/r ■ i-io.c-h The pbrntid Li <1? -y Mahs-i.,-. sere ¡sli;: attached fb.ft s- m.* properly fo’.- d.;;b:si e fo ího o re-rrei.'-. r.'r, a:<d ]>r o..’ V<! thei.i «uta- htmrnfa with libo c?Fo-.\ Th'1 doibn ir.-d iV'.-nde !.a’ had roí ice of the sdt .ch'-rents before he paid the money in d:siihrv'ge of the debt to R. G. Lindsay. T„o plaintiilh sevei dly demanded of Mendonball the payment of their respective claims before this suit was brought, out of the proceeds of the sale, but he refused eo to apply the money, except the sum which he paid to the Sloans ia part payment of their judgment.

j. T. M'oorehead for the plaintiff,

Gilmar for the defendants.

Pbáhson, O. J.

John 8. Dare on ihe death of his mother bec'ame the owner of the house and lot, in fee simple, as her heir ; i law subject to a power of sale by her ¡administrator in the event, that a sale was necessary for the payment ofher debts. •

The plaintiffs by the pulls and judgments under their attachments, a‘quited alien on Ihe house* and lot, raid but for the o* w/m.-e ot the powi-r of 'ride by the administrator of Mrs. M'tehcil. thry won hi have. Leen entitled to have ' the l.o:;: e and Jot t'ohl '(he, paym-vJ. of their debts. Having bom dep ivod of ibis rigid at bnv, by the sale of the admin:: Tab-r, the quc-Ium is, whether they are not, entitled i-> * court nfequih t ’ follow the fund in the hands of the ; ’.h n’niulrsi'.or, ..•?•<! hi; :o it applied in discharge of their debía, nffei deduclin;; i; « unu-ont implied by the ad-rninbtnd or pi uncr*!- of ;].•■ d-bts ofh:s inli’fet&tc.

We third: ihe ;:ity a clear one. Tin- plaint’ffs had uv-ipjiroJ a Lb v and have r.n > qri'y to bo 'choud fioiu (he a'i.ideu.t that the p;r petty \va? --o'd under a j moor which the law gc.-';. to the edtKhib.'rvb.-r oí the. raaestor. The ]*• is of the- piídr.íiff.? having altad cd, it follows that the deffvnh.n! b';r\% hid no light tqdis-pose of the ford in the hand-, of the admb.is'rr.ior,,!;'.'!’ had the administrator as such, or tv- the eger.l cf Dure, v.ry light to male an application of the fund remaining in Lis-bards, after discharging the debts of ft is intestate.

It is prepoily conceded that the. deed executed by Dare to Ib M. Lindsay is of no effect, and it is equally clear that the plaintiffs J and It, Sloan are note-stopped by receiving -a part of the fund, from setting up their equity to have such an amount as may bo necessary, applied to the payment of their debt, as they had acquired the first lien. The administrator, if he was in doubt as to the right of the .creditors of Dare, ought to have retained the fund and filed a hill of interpleader. . As two of the plaintiffs Sloan and Lindsay, were sureties on the debt of R. M. Lindsay, to which the administrator applied the fund, he is entitled to a credit as against them, for a rateable part of that debt; that is such as they were bopnd to pay upon contribution •with the other sureties of Dare.

There will be a reference to ascertain this amount bud show .the sima 'to which the p'alntife are respectively entitled.