Scales v. . Scales

ClaeksoN, J. On the facts in this case, did the court err in signing the above judgment? We think not. N. C. Code, 1939 (Michie), sec. 618, in part, is as follows: “In all cases in the courts of this State wherein judgment has been, or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof; if one of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the amount due on said judgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity,” etc. Fowle v. McLean, 168 N. C., 537; Hamilton v. R. R., 203 N. C., 468; Hoft v. Mohn, 215 N. C., 397. H. M. Neal, W. L. Scales, Jr., and H. J. Eollins were all primarily and equally liable, jointly and severally, on the judgment. II. J. Eollins paid the judgment and under the statute, supra, it was transferred to Fred W. Bynum, Trustee. Scales is one of the judgment debtors and has paid no part of the judgment. The judgment is a lien on the land. N. C. Code, supra, sec. 614. The fact that the judgment was settled for $225.00 does not release Scales’ land from the lien of the judgment against him. Sec. 618, supra. His liability was joint and several to the creditor and his liability was his proportionate part among the judgment debtors- — -one-third of the judgment. In equity, it having been *556 purchased for $225.00, bis liability would be at least $75.00 — one-tbird tbe purchase price of the judgment, there being three judgment debtors. It is contended by plaintiff that “It is apparent that H. J. Rollins acquired no rights against his codefendant debtors, who were jointly and severally liable with him, by having the judgment assigned to a trustee for his benefit, for the reason that by paying $225.00 for the transfer of the $3,250.00 judgment, he paid neither the entire judgment nor more than his proportionate part thereof, which is a condition precedent to make the assignment sufficient at law to keep the judgment alive and thus enable him to wield it against his co-debtors.” We cannot sustain this contention. We do not think it is applicable on the facts of record in this case. Rollins not only paid his proportionate part, but the entire judgment of $3,250.00 and the “entire debt” which was reduced to judgment. The judgment against H. M. Neal, W. L. Scales, Jr., and H. J. Rollins is settled by Rollins’, paying the $225.00. The assignment to the trustee protects him and preserves the lien against the other judgment debtors. We think this is consonant with law and equity under the statute, supra, sec. 618, before cited. Fowle v. McLean, supra, p. 543. In 13 American Jurisprudence, sec. 18, p. 23, is the following: “The basis for ascertainment of the excess paid is not necessarily the amount of the original common obligation; if the claimant has satisfied the entire debt or demand or relieved the whole burden by payment of a less amount, he is entitled to contribution only on the basis of the amount actually paid. In the case of a compromise made by the claimant, the sum recoverable must be ascertained on the basis of the amount paid in compromise, each contractor being entitled to the benefit of the compromise,” etc. The rule that the claimant must have paid more than his pro rata share of the common liability does not render it necessary that he shall have paid more than such share of the original liability, provided the debt to the creditors has been extinguished as against all the obligors. 14 B. R. C., 713; Am. Law Inst. Restatement, Restitution, see. 82. For the reasons given, the judgment of the court below is Affirmed.