Haywood v. . Russell

ClaeK, C. J. On 1 January, 1892, L. M. Russell executed a note for $326, with 8 per cent interest from 1881, to George W. Morris, who in turn assigned same to one Livingston, whose administrator recovered judgment January, 1899, for $454.12, against L. M. Russell and George W. Morris. The administrator, 0. A. Haywood, assigned the said judgment to D. T. Russell, the wife of L. M. Russell. She instituted proceedings to revive said judgment, and' the jury having found, on issues submitted, that it was' not barred by the statute of limitations, said judgment was renewed before Adams, J., 26 September, 1919, but execution was issued against George W. Morris alone for $1,038.32, who paid off the same, b.ut caused the judgment to be assigned to W. R. Harris, trustee, for his benefit. L. M. Russell being a debtor, and the payee, George W. Morris, having endorsed the paper, is entitled in equity to recover the entire sum paid by him for the original debtor, for this is in substance an action, C. S., 3963, by the surety to recover from his principal the amount which he *713 paid upon tbe execution issued upon tbe joint judgment against them in favor of tbe assignee of tbe original judgment creditor, L. M. Bussell, and which was revived by her in an action against both, but execution having been issued and collected out of George W. Morris solely. Morris having obtained judgment against L. M. Bussell in this proceeding for only one-half of the amount paid by him, assigns as error: 1. .That the court refused to allow George W. Morris (who is the real plaintiff in this action) to testify that he was payee on the note given by L. M. Bussell to G. W. Morris, which was endorsed by him to E. T. B. Livingston, who obtained judgment against them both in 1899. 2. George W. Morris further assigns as error that the court refused to allow him to testify that he endorsed the note to E. T. B. Livingston which had been executed to him by L. M. Bussell. 3. George W. Morris further assigns as error that the court refused to allow him to testify that he bore the relation of surety to Bussell on the note. 4. G. "W. Morris further assigns for error that the court refused to allowr the witness I. E. Sanders to testify that George W. Morris’ name was endorsed on the note that was in suit, on which the judgment was obtained in 1899. 5. George W. Morris further assigns as error that the court refused to allow him to testify that L. M. Bussell was principal on the note which -was endorsed by him to E. T. B. Livingston, on which the judgment was obtained. 6. G. "W". Morris further assigns as error that the court refused to allow G. "W". Morris to testify that he was surety for the defendant L. M. Bussell on the note aforesaid. This is an action by the endorser to recover of the principal the full amount of the note which he has paid. It is well settled that the surety on a note on which judgment has been taken can set up his suretyship, notwithstanding he did not plead it in the original action. In Kennedy v. Trust Co., 180 N. C., 229, it is held: “As between the apparent makers and the original taker of the Kennedy notes, it was competent for the plaintiff to prove which of the two signing the notes to the bank was the principal debtor, and which was the surety. Welfare v. Thompson, 83 N. C., 276; Lockhart v. Ballard, 113 N. C., 292; Foster v. Davis, 175 N. C., 541; Williams v. Lewis, 158 N. C., 571.” In Foster v. Davis, 175 N. C., 541, it is said that if “The wife promised to pay the debt of her husband when she signed the note she was a surety, and it was competent to prove the relationship by parol as between the parties, although she appeared to be a principal on the face of the note. Williams v. Lewis, 158 N. C., 574.” Indeed, the equity and the precedents are so well settled that no citation of authorities or discussion of the principle is necessary. *714 As both L. M. Russell and George W. Morris are still living, C. S., 1795, did not disqualify this testimony, and we know of no other ground that can be assigned. There are other exceptions, but it is unnecessary to discuss them, and, indeed, it seems that we cannot consider several of them, which are exceptions to the rejection oí evidence which were not taken till after verdict. New trial. Adams, J., did not sit.