Opinion
June Term, 1857.
Where J.L. agreed to make good to the plaintiff, certain sums, which they had paid as sureties for his son, out of that part of his estate which his said son would be entitled to at his (J.L's) death, and covenanted, by deed, to pay such claims as said sureties could produce on or before the death of J.L., in a suit brought against the executor of J.L., it was Held that it was not necessary to show that the sureties had exhibited their claims to J.L. in his life-time.
THIS was an action of DEBT, tried before his Honor, Judge DICK, at the Spring Term, 1857, of Union Superior Court.
The action was brought on the following bond:
"State of North Carolina, Union County:
Know all men by these presents, that we, John Long and Jacob Long, are held and firmly bound to David Simpson, and David Cuthbertson, in the sum of four hundred dollars, to be paid to the said Simpson and Cuthbertson, their heirs and administrators, and to the which payment, c.; The conditions of the above obligation is as such, that David Simpson and David Cuthbertson, has paid money for John Long as security, on sundry bonds, and sundry executions, we, John Long and Jacob Long, are held and firmly bound unto D. Simpson and D. Cuthbertson, to pay all the just claims, receipts, and executions, that they can produce, on, or before the death of Jacob Long, to be paid out of John Long's distributive share of his father's estate."
The claims existing between the parties, had been referred to an accountant to state the debts, and monies secured by the bond, with the testimony. The account was stated, and no exceptions filed, whereby it appeared that the amount paid by the plaintiffs, for John Long, was $278,58.
This statement was put in without exception from the defendant. But it was insisted, that according to the true and proper construction of the instrument above set forth, the plaintiffs should have shown that the claims, receipts, and executions, taken into that account, and now insisted on, had been produced to Jacob Long, in his life-time.
His Honor declined giving that construction to the instrument, to which defendant excepted.
Verdict for plaintiff, Judgment. Appeal by defendant.
Osborne and Jones, for plaintiff.
Wilson, for the defendant.
The action is brought on a conditional bond. The condition is as follows: "The conditions of the above obligation is such, that David Simpson and David Cuthbertson, have paid money for John Long, as securities on several bonds and sundry executions; we, John Long and Jacob long, are held and firmly bound to the said D. Simpson and D. Cuthbertson, to pay all the just claims, receipts or executions, that they can produce, on or before the death of Jacob Long, to be paid out of John Long's distributive share of his father's estate. Signed, "John Long," "Jacob Long," each with a seal attached. The case states that the plaintiffs had paid as sureties, before the death of Jacob Long, the sum of $278.58.
The only question which is presented to us is, as to the proper construction of that portion of the condition which relates to the production of their just claims, receipts and executions, on or before the death of Jacob Long, the father of John Long, of whom the defendant, Henry Long, is the executor. From a part of the case, it appears that the defence below was rested on the fact, that these evidences of debt, were not produced to Jacob Long before his death.
His Honor instructed the jury, that the plaintiffs were entitled to recover from the defendant all sums of money which they had paid for John Long, as his sureties, before the death of Jacob Long. In this construction of the obligation, we entirely concur. There is nothing in the instrument, showing that these evidences of payment were to be produced to Jacob Long during his life. The true meaning was, that Jacob Long was to repay to the plaintiffs all such money as they should pay for his son John, during his (Jacob's) life. He was not willing to bind himself for payments made after his death.
PER CURIAM. Judgment affirmed.