Taylor v. Miller, 62 N.C. 365, 1 Phil. Eq. 365 (1868)

Jan. 1868 · Supreme Court of North Carolina

62 N.C. 365, 1 Phil. Eq. 365

JOHN D. TAYLOR, and another v. ANNIE W. MILLER, Extrx., and WM. E. BOUDINOT, Extr.

Sureties upon a bond may file a bill for exoneration, without being compelled previously to pay off Such bond; — but such equity is merely collateral, and does not place them in a better condition as against their principal, than if they held his bond for the amount for which they are liable.

{Moore v. Miller, ante 359, cited and approved.)

Bill, filed to Fall Term 1867 of the Court of Equity for Wake; a joint general demurrer having at that term been put in, was set down for argument, and at December Special Term thereafter the cause was by consent transmitted to this court.

The complainants were sureties upon a bond due by Thomas C. Miller, the testator of the defendant Annie, as principal, and suit was pending against them thereupon. The other allegations in the bill were similar to those contained in the case of Moore v. Miller, which immediately precedes this.

The prayer was for exoneration, and was in other respects like that in the former case.

Haywood, for the complainants.

Bragg, contra.

Pearson, C. J.

This case differs from Moore v. Miller at the present term, only in this: The plaintiffs as sureties seek for exoneration without being compelled beforehand to pay up the debt. That equity in favor of sureties is settled, but it is merely collateral, and cannot be allowed the effect of putting them in a better condition than if they had paid the debt. Had they done so, by force of the act of 1829 they would have been entitled to the dignity of bond creditors and no more. So they are to stand on the same footing as any other bond creditor, and can claim no superior equity simply from the fact that they have not been compelled to discharge their original liability, and as we have just seen that Mr. Moore, a bond creditor, cannot maintain a bill, it follows that they cannot.

Demurrer allowed — bill dismissed.

Per Curiam.

Bill dismissed.