Sherwood Ex Rel. State Bank v. Collier , 14 N.C. 380 ( 1832 )

On the trial, during the last spring circuit, before Martin, J., at WAYNE, the case was as follows: The intestate died in 1815, indebted to the State Bank by a note for $630, to which one Hooks was surety. In the year 1816 judgment was recovered by the bank upon this note against the administrator, W. B. Green, and an execution issued, which was returnednulla bona. In the year 1818 the bank also recovered judgment against the surety Hooks, which was satisfied by him in the year 1823. This action was commenced in the year 1829. Upon these facts his Honor instructed the jury that the payment by Hooks barred the action. The plaintiff, in submission to this opinion, suffered a nonsuit and appealed. after stating the case, proceeded as follows: I suppose the present action is brought for the benefit of the surety, Hooks, to avoid the effect of the statute of limitations, or a disbursement of the assets subsequent to the judgment of the bank against Green, which might prevent an effectual recovery in a suit in Hooks' own name.

But in the case stated, I think the present action equally ineffectual. Since the statute of 4th Ann, payment discharges a judgment as effectually as entering satisfaction of record. Here there was full payment. It was intended as such by Hooks, and so received by the creditor. A payment by any one of two or more, jointly, or jointly and severally bound for the same debt, is payment by all, and any of the parties may take advantage of it and plead it to an action brought by a satisfied creditor, or in his name by the sureties. It is true that if a payment be not intended, but a purchase, there is a difference. But that can only be by a stranger, or by using the name of a stranger, to whom an assignment can be made when there is but a single security, and that one upon which all the parties are jointly liable. This is upon the score of intention, and because the plea of payment by a stranger is bad upon demurrer. If the assignment of a joint security be taken by the surety himself, there is an extinguishment, notwithstanding the intention, because an assignment to one of his own debt is an absurdity. Where the securities are separate, as several bonds, or a several judgment upon a joint and several note, which is the case here, probably an assignment may be made to the surety himself, since he is no party to the (382) judgment. But if that can be, clearly nothing but a plain intention, evinced by an assignment, to keep up the judgment, can have that effect. Upon the face of the transaction it is a payment on which Hooks could have maintained assumpsit in his own name. That shows that this suit is barred; for if it be not, the original creditor and the surety may both recover the same debt.

This case is just the reverse of Hodges v. Armstrong, ante, 253. That suit was brought in the name of the surety, who had taken an assignment to a stranger and did not intend a satisfaction. This, in the name of the first creditor who had received payment and did intend a satisfaction. Both decisions are on clear grounds, and are supported by numerous authorities, amongst them I recollect Church v. Bishop, 2 Ves., 371, and Wattington v.Sparks, ibid., 569.

PER CURIAM. Judgment affirmed.

Cited: Foster v. Frost, 15 N.C. 429; Bailey v. Sugg, 21 N.C. 368;Null v. Moore, 32 N.C. 327; Brown v. Long, 36 N.C. 192; Runyon v.Clark, 49 N.C. 54; Hanner v. Douglas, 57 N.C. 265; York v. Landis,65 N.C. 537; McCoy v. Wood, 70 N.C. 129; Rice v. Hearn, 109 N.C. 151;Liles v. Rogers, 113 N.C. 200; Peebles v. Gay, 115 N.C. 41; Burnett v.Sledge, 129 N.C. 120; Davison v. Gregory, 132 N.C. 396; Bank v. HotelCo., 147 N.C. 598; Liverman v. Cahoon, 156 N.C. 188.