Clark v. Williams , 70 N.C. 679 ( 1874 )

Rsade, J.

The plaintiff, who was one of two sureties to tbe administration bond, and paid one-half of a debt recovered against tbe insolvent administrator, is not subrogated to the rights of the creditor, whose debt he paid, but to the rights of the administrator, for whom he paid it. It follows, that if the administrator has no rights, the plaintiff, his surety, has none. It becomes important, therefore, to determine the rights of the administrator.

The administrator delivered over the property of the estate to the distributees, leaving a debt against the estate unpaid, and which was subsequently recovered against him. Can he recover back of the distributees ? It is settled that he cannot. Donnell v. Cooke, 63 N. C. R., 220. To this general rule, there is the exception, that if he can show special circumstances to rebut the idea of negligence, he may recover back. Ibid. Tbe special circumstance relied on in this case is, that the intestate was not principal in the debt against the estate, but was only the surety; and the principal ivas, beyond all question solvent, and able to to pay, and was rendered insolvent by the unforeseen accident of the emancipation of his-slaves. So that it would have been over-scrupulousness, if not down right wrong, for the administrator to hold the estate in his hands -to pay a surety debt, which there seemed to be not tbe slightest probability that he would have to pay.

The administrator, under these circumstances, being entitled to recover back of the'*distributees, and tbe plaintiff svirety being substituted in bis place, the question is, in what proportion must the distributees contribute? If they had executed the usual refunding bonds with sureties, they would have been conditioned, that each distributee should contribute bis “ratable part.” It was the privilege of the administrator to require such bonds. As be did not do so, their liability to him is, each for his ratable part only. And the solvent ones are not liable to pay the parts of the insolvent.

The judgment below must be modified so as to give tbe plaintiff judgment here against Williams for one-half of his claim, and judgment against each of the other defendants for one-eighth of the other half.

The cáse has been obscured by considering the plaintiff as subrogated to the rights of the creditor. He is not subrogated to the rights of the creditor, but to the rights of the administrator. Suppose, then, that the administrator had paid off the debt, his right would have been to call upon Williams for one-half', and upon each of the eight next of kin for one-eighth of the other half. What the administrator could have done his surety, the plaintiff, can do, and no more.

It will be noticed that this view puts in Mrs. Thompson for one-eighth also, although she has already for her husband as co-surety with the plaintiffl paid as much as the plaintiff has. So that it now becomes proper for ns to determine the rights and liabilities of the defendants, not to the plaintiff, but as among themselves. Which are we authorized to do, under Code of Civil Procedure, section 248.

Just as the plaintiff, one of the sureties of the administrator, is entitled to take the place of the administrator, to recover of the distributees what he has been obliged to pay, so Mrs. Thompson and the other representatives of Lewis Thompson, deceased, the other surety of the administrator, and -who was obliged to pay one-half the debt, is entitled to take the place of the administrator, and recover from the distributees what Mr. Thompson paid. Mr. Thompson’s representatives are therefore entitled to judgment against Williams for one-lialf of what Mr. Thompson or his estate paid, and against each of the eight distributees (other than himself) for one-eightli of the other half. So that it will work out that Williams pay one-half the debt, and each of the eight distributees pays one-eighth of the other half of the debt. And tho plaintiff and Thompson, the sureties of the administrator, lose the insolvent shares.

There will be judgment here for the plaintiff according to this opinion, and for the representatives of Lewis Thompson, deceased, according to this opinion. And the plaintiff and the representatives of Thompson will recover their costs.

Per OcRiAM. Judgment modified.