Opinion
(December Term, 1860.)
Where the land of one of two sureties of a third person was sold under execution for the debt, and the other surety bid it off, it was Held, that an agreement for the owner of the land to pay the debt and take an assignment of the bid to him was not affected by the statute of frauds.
ASSUMPSIT tried before French, J., at last Fall Term of HARNETT.
Neill McKay for plaintiff.
No counsel for defendant.
The plaintiff declared for money paid by his intestate as cosurety with defendant for one Strickland. A judgment had been obtained on the debt against Strickland and the two sureties, Matthews and Parker (plaintiff's intestate and the defendant), and execution thereon was levied on Matthew's land, which was sold and bid off (17) by Parker and one Stewart. They, after this, came to an agreement that Matthews should take the whole debt on himself and should satisfy the execution; in consideration of which understanding they assigned their bid for his land to him.
The counsel for the plaintiff requested the court to charge the jury:
1. That the agreement of the intestate (Matthews) to satisfy the execution upon the assignment of the bid of Stewart and the defendant, not being reduced to writing, was void under the statute of frauds. The court declined to give this instruction.
2. The plaintiff then asked his Honor to instruct the jury, that if they believed the evidence for the defendant there was combination and fraud on the part of Stewart and the defendant, and the plaintiff could not recover.
3. That if the jury believed that the promise of the plaintiff was merely to satisfy the execution, and not to discharge the defendant from his liability as surety, the plaintiff was entitled to recover.
The last two instructions the court declined giving, for the reason that there was no evidence to sustain them. Plaintiff's counsel excepted.
Verdict for defendant. Judgment and appeal by plaintiff.
An analysis and proper understanding of the facts of this case will show, as we conceive, that the instruction first asked for by the plaintiff is based upon an erroneous view of their substance and effect. The engagement of the plaintiff's intestate to pay the whole judgment against himself and Parker, as the sureties of Strickland, is not a promise to pay the debt of another, but an undertaking on the part of Matthews, for a consideration, to make that debt (18) his own in respect to his cosureties.
It was competent for Matthews to make this arrangement, which was simply a mode of making a payment for the assignment of the right to call for a title to the land. His promise to pay a specific sum to Parker for the right would have been obligatory as a promise based upon a sufficient consideration moving from one party to the other. It does not change the nature or binding force of the promise, that it is to extinguish a debt which Parker owes to another. It is still a mode by which Matthews pays his own debt, and the promise on his part is simply to that purport and effect. The provision, therefore, of the Revised Code (chap. 50, sec. 15) opposes no obstacle to the legal efficacy of the intestate's agreement. Nor does the eleventh section stand in the way; for the Court has repeatedly held that an assignment of a bid at a sale of lands under a fi. fa. is valid without writing.
The view which we have thus taken of the promise of Matthews disposes of the merits of the case in respect of all redress in a court of law. The promise of Matthews being to pay his own debt, it follows when he paid it, it was not money paid as the cosurety of Parker and to his use, for which the statute gives the remedy at law, Rev. Code, chap. 110, sec. 2. The substance of the court's instruction, therefore, was correct, viz., that upon the evidence the plaintiff could not recover.
The dubious aspect of the case has arisen out of the unexplained and surprising folly of a man, who, being able to pay, suffers his land to be sold at a sacrifice and immediately buys it back at a great advance. We are unable to understand this from anything stated in the case. Whether it may not have been effected by combination and fraud between Parker and Stewart and others, as suggested in the second prayer for instruction, we cannot say. Such fraud might account for it, but we find no proof to sustain the suggestion.
The instruction asked for, therefore, in the second place, was properly refused by the court, because it was hypothetical and without evidence to sustain it. If there had been evidence, the remedy would probably have been held to be in another forum, where the parties might be (19) regarded as still standing in the relation of cosureties, notwithstanding the agreement and promise to the contrary.
The instruction asked for, in the third place, stands upon the same footing with the last, resting upon no foundation in the proofs. It also was properly refused by the Court. There is
PER CURIAM. No error.
Cited: Peele v. Powell, 156 N.C. 558; Handle Co. v. Plumbing Co., 171 N.C. 503.