Thigpen v. Price, 62 N.C. 146, 1 Phil. Eq. 146 (1867)

Jan. 1867 · Supreme Court of North Carolina

62 N.C. 146, 1 Phil. Eq. 146

WILLIAM A. THIGPEN, Ex’r., and others v. SIMON T. PRICE and others.

Sureties can sustain a bill to have a debt paid by their principal, or out of his estate, before they have been compelled to pay the debt.

One in possession under a purchase of a resulting trust in land, conveyed to a trustee to secure creditors or sureties, does not hold adversely to the trustee and cestui que trusts.

(Miller v. Miller, ante p. 85, cited and approved.)

Bill, for the indemnity of sureties, &e., filed to the Fall Term, 1866, of the Court of Equity for Martin. A general demurrer was filed at that term, and, upon argument before Merrimon, J., the demurrer was overruled, and the defendants appealed to this court.

According to the allegations of the bill, one J. B. Whitley, on the 10th April, 1857, executed to one Eli Cherry a deed of trust for certain personal and real estate, including a house and lot in Williamston, (the subject matter of this bill,) to secure the payment, among other debts, of a note given by him, with Cherry and the defendant William Thigpen as sureties, to one John B. Griffin. On the 22d of April, 1857, Whitley executed another deed in trust, in which he conveyed said house and lot and other property to the defendant, Simon T. Price, to secure the debts named in the deed to Cherry, besides others; and providing that if said debts were not paid by the 1st January thereafter, Price should sell the house and lot, with the other property, and pay the debts, &c. Neither Cherry nor Price, as trustee, took into possession or sold the house and lot, but Whitley “ conveyed the same to one Bennett S. Baker, or upon some agreement placed said Baker in possession ” thereof. Baker afterwards died and his widow, the defendant Mary, and the defendant Frank A. Bobbitt, whom she has since married, are in possession of the house and lot. The debts, which the deeds of trust were made to secure, have been paid, with the exception of the one due to Griffin, above set forth.

Cherry made a will and died in 1859, and Griffin and Whitley are dead intestate.

The parties are William A. Thigpen, executor of Cherry, W. H. Lee, administrator of Griffin, Mary E. Cherry, widow and devisee, and William S. and Lawrence Cherry, heirs at law and devisees of Eli Cherry, and William Thigpen, complainants, and Simon T. Price and F. A. Bobbitt and wife, Mary, defendants.

The prayer is that a new trustee be appointed in the place of Eli Cherry; that Bobbitt and wife be required to surrender the possession of the house and lot; that the same be sold and the proceeds applied to the Griffin debt; that Price, as trustee, be required to render an account of the property, &c., that may have come into his hands as trustee, and pay the Griffin debt to the administrator; and for further relief.

Biggs, for the complainants.

Bogers <& Batchelor, for the defendants.

Pearson, C. J.

There is no error in the order appealed from.

The demurrer is general. Neither of the grounds taken at the bar in support of it is tenable.

Sureties may file a bill to have a debt paid by the principal, or out of his estate, for their exoneration, before they are forced to pay the debt. This is settled. See Miller v. Miller, decided at this term, ante, p. 85. It follows that, although the bill might have been sustained without making these parties complainant, it is not error to^oin them as complainants in a bill to enforce a trust for th.e payment of the debt.

The second ground is also untenable.

The allegation of the bill is that Whitley conveyed his. resulting trust to Baker, under whom the defendants Bobbitt and wife are in possession; and taking that to be so, their possession is not adverse. They may be entitled to the excess of the proceeds of sale after paying off the debts, secured by the trust deed.

This will be certified.

Per Curiam.

Demurrer overruled.