Moore v. . Smith , 116 N.C. 667 ( 1895 )

His Honor ordered an account of the estate of Smith to be taken and reserved the question of the personal liability of the defendant administrators until the referee's report is filed. The question more elaborately argued before us was as to the effect of the Virginia judgment against the (669) defendant administrators, Darien and G. W. Smith. We find it unnecessary to enter into that question, because that judgment was unquestionably valid against the sureties Trent and Morris, who are now plaintiffs in this action. That judgment is also competent evidence against the defendant administrators and their privies, it appearing from the record that the administrators not only had notice but were present and resisting the recovery against them and the sureties of their intestate, as principal debtor. Lewis v. Fort, 75 N.C. 251; Hare v. Grant, 77 N.C. 203.

The further objection was taken that plaintiffs, Trent and Morris, could not recover, as they are indemnified, until they have paid the debts against their principal. In an action at law this position would be tenable, but it is not so in a court of Equity, and for this reason they were properly allowed to be made parties plaintiff. The exercise of this equitable jurisdiction works out just results, i.e., the other plaintiffs are enabled to receive the money due them, the real debtor is compelled to pay it and the plaintiff sureties are relieved from jeopardy. Ferrer v.Barrett, 57 N.C. 445; Wickell v. Henderson, 59 N.C. 286; Scott v.Timberlake, 83 N.C. 382. Of course the plaintiff sureties would remain liable on the Virginia judgment for any balance not realized in this action. If it appeared that there were any creditors of Smith's estate they would be necessary parties to enable those sureties to avail themselves of this equitable relief; but in their absence, the heirs and distributees are the next entitled and they are present in this proceeding to receive the money due by defendants.

It will be the duty of the court below to direct that the plaintiff sureties receive no more than they have paid on said judgment to the (670) use of the other plaintiffs since its rendition, and that the other plaintiffs receive the balance of the recovery according to their several rights.

With these modifications, the judgment is

Affirmed.