Opinion
(December Term, 1833.)
Where two persons engage in one common risque, as sureties for a third, and one of them subsequently takes an indemnity from the principal debtor, such indemnity enures to the benefit of all the sureties.
This was an action of ASSUMPSIT, brought to recover from the defendant, money alleged to have been paid by him as co-surety with the defendant's intestate, for one Abram Maer. It came on in the form of a case agreed at Spring Term, 1833, of BERTIE Superior Court.
Nash for the plaintiff.
Hogg for the defendant.
It appeared from the case that the plaintiff with the defendant's intestate, and one Horace Ely, were co-sureties for Abram Maer, to a guardian bond, on which judgment was rendered against Maer, and his sureties for $6,744.48, with interest. Maer and Ely were both insolvent at the rendition of this judgment. Maer had executed a deed to John S. Bryan in trust, among other things, to secure the said Fagan and Ely, on account of their suretyship for him. From the fund arising from this trust, $3,654.88 was paid towards the judgment against Maer and his sureties. The plaintiff, Fagan, paid besides, $1,257.39 of this judgment, and the sum of $1,867.02 was paid by the defendant. Ely paid nothing.
It was agreed that the case should be decided on the same principles as if it were in a Court of Equity.
His Honor, Judge Norwood, being of opinion that the plaintiff was not entitled to recover, rendered judgment of nonsuit, from which, the plaintiff appealed.
This cause comes before us on the appeal of the plaintiff from a judgment of nonsuit rendered in the Superior Court, upon a case agreed between the parties, and we are of opinion that this judgment is correct. It is a part of the case agreed, that the cause may (264) be decided upon the same principles as though it were pending in a Court of Equity. We do not conceive that this agreement of the parties could bestow upon the Court, an authority to decide the case by any other principles than those which the law prescribes for its decision. The parties may agree upon facts, but the conclusion to be pronounced upon those facts, must be in conformity to the rules which are laid down by a higher authority than that of the parties. In this case, however, we apprehend that there is no difference between the law and equity which are applicable to it. The plaintiff is not entitled to recover from the defendant, because he has not paid more than his ratable proportion of the debt, which in consequence of the insolvency of Maer and of Ely, has been thrown upon the intestate of the defendant. The sum which has been raised by the sale of Maer's property and applied in part discharge of this debt, was not in contemplation of law, or within the meaning of our act of 1807, paid by the plaintiff. It was applied, as the deed of trust from Maer to Bryan, directed it to be applied, and although the motive of Maer in making the deed of trust is declared to be the indemnity of Ely and Fagan, yet this cannot change the character of the fund or the effect of this application of it. And in equity we understand the rule to be well settled, that when two or more persons engage in one common risque, as sureties for another, and one of them subsequently takes an indemnity from the principal debtor, such indemnity shall enure to the benefit of all these sureties. This principle is distinctly asserted in Moore v. Moore, 11 N.C. 358, and the decision there is expressly based upon the ground that the sureties had not engaged in the same common risque.
PER CURIAM. Judgment affirmed.
Cited: Hall v. Robinson, 30 N.C. 61; Pool v. Williams, Ib., 288; Gregory v. Murrell, 37 N.C. 236; Falkner v. Hunt, 68 N.C. 477.
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