Jones v. . McKinnon , 87 N.C. 294 ( 1882 )

The argument for the appellant proceeds upon the idea, that the assignment of the judgment recovered by the guardian, Pearce, for and in behalf of his wards, to preserve its vitality as subsisting security, operated in equity as a transfer also of his interest in, and right of action on the bond, and hence the latter may sue in his own name as trustee of an express trust, (297) under section 51 of the Code.

The assignment of the judgment only is averred in the complaint to have been to avoid the consequences at law of a direct payment which would have been an extinguishment, not only of the judgment, but of the cause of action contained in the bond, because it would have been a satisfaction of the damages sustained by its breach. The equity vesting in the surety, whose money has been paid in securing the transfer, is to convert the guardian into a trustee, whose name may be used in collecting the judgment as well as in enforcing by action the obligation contained in the guardian bond, both of which would have been defeated by a payment without such assignment. The party therefore who recovered the judgment, can also as relator sue on the bond; and he, if any one, is the trustee of an express trust, as the surety, Tomlinson, is the cestui que trust, entitled to the damages recovered within the meaning of the Code.

But it is obvious he is the real party in interest, and in any action could recover a moiety only, of the sum due from the principal, of his co-surety the intestate.

If he could recover the whole damages, it would in effect be a recovery as to the other half against, himself; and thus we should have the anomalous result of a recovery by the real party in interest, and who is alone recognized as entitled to what is recovered, against himself.

The difficulty would not be obviated by suing the intestate alone, since the liability of both arises upon one and the same instrument.

We think the legal effect of the assignment is to preserve the securityof the judgment against the principal debtor, for the reimbursement of what has been paid by Tomlinson, and of both sureties when the intestate's estate has made good the portion of the common indebtedness resting upon it.

In our present method of procedure, Tomlinson must be (298) deemed to have paid the amount of the judgment, and to have by reason thereof a claim upon the intestate's estate for contribution; and the assignment only serves to keep alive the judgment rendered against Wooten.

If follows, therefore, if the action can be prosecuted upon the bond, it must be in the name of the party who alone could before maintain it, and for the benefit of Tomlinson, but not in the name of the present relator; and so can the paying surety compel the estate of his co-surety to repay one-half of the sum paid by himself.

We therefore concur with his Honor in sustaining the demurrer and dismissing the action — the case not coming within the purview of section 131 of the Code, which applies to a demurrer for the misjoinder of several causes of action alone. The judgment must be affirmed.

No error. Affirmed.

Cited: Fowle v. McLean, 168 N.C. 592; Bank v. Thomas, 204 N.C. 602;Burleson v. Burleson, 217 N.C. 339; Casey v. Grantham, 239 N.C. 130.