Ayers v. Makely.

MoNtgomeey, J. (after stating the facts). The plaintiffs in this action are Ayers and the sureties on his bond in the ejectment suit. In the complaint they allege that during the pendency of the action of ejectment, Ayers was not ejected by process of law, but that he voluntarily surrendered possession of the premises to Makely on Makely’s express promise to Ayers and his sureties that they should not be held responsible for the rents and profits growing out of the land while Ayers was in the possession thereof, and that he would hold Ayers and his sureties harmless against any demand that might be made on them for the rents and profits by Wahab and Credle. And this action is brought to recover from Makely the amount which the sureties have had to pay, and will have to pay, because of the recovery against them on the bonds in the ejectment suit. The defendant, in his answer, denied the cause of action alleged in the complaint. At the Fall Term, 1901, of Hyde Superior Court, he moved to amend his answer and to plead counter-claims and set-off. The counter-claim which the defendant desired to plead was in substance that Ayers was the principal in the bonds filed in the ejectment suit, and that the other plaintiffs were sureties, and that Ayers owed him $5,359.44-, that amount being the difference between the amount of Makely’s incumbrance on the land and the amount at which he bought the land at the commissioner’s sale, and that Ayers had assumed the payment of the ineum-brances. The motion to amend the answer and set up the counterclaim was denied, the order being silent as to the ground of refusal. The plaintiff contends that there can be no appeal at any time from the refusal to allow the answer to be filed, *64 for the reason that such matter was entirely discretionary with the Court, and the order being silent as to the ground of refusal, the conclusion is that it was denied as a matter of discretion. But in making up the case on appeal, bis Honor stated that be did not refuse to allow the amendment as a matter of discretion, but on the ground that the offered counter-claim did not amount to a counter-claim in law. the presumption in law that the order was made in the discretion of the Court was rebutted by the statement of bis Honor to the contrary in the case made up for this Court. the appeal was premature, but as the whole matter in dispute came out on the argument here, it may be best for all (the Court included) to pass upon the ruling made by bis Honor that the claim of the defendant did not amount to a counter-claim in law. We see no error in the ruling. It was argued here by the counsel of the defendant that the legal effect of the contract of sale was to make Ayers the principal debtor, as between himself and Wahab and Credle, as to the debts due by Wahab and Credle to Makely, and that that position was brought about by the assumption by Ayers to pay those debts for Wahab and Credle. On that proposition it was insisted that the release of Wahab and Credle from their indebtedness to Makely was only a release of the sureties, and not a release of Ayers, the principal. But from our reading of the contract, we do not find that there was any assumption, on the part of Ayers, of the debts of Wahab and Credle to Makely. the relations of the parties to that contract were not changed by its execution. the most that could be said is that Ayers bound himself to see that particular payments on the purchase-money should be applied to the claims of Makely. the language of that part of the contract is as follows: “It is understood by and between the parties hereto that the payments above mentioned to be made by said third party (Ayers) shall be applied to the payment of those *65 incumbrances held by said second party (Makely), until the principal of said incumbrances and interest thereon bas been reduced to the sum of ten thousand dollars.” We are of the opinion, therefore, that when, at the time of bis purchase of the land at the commissioner’s sale Makely released and discharged Wabab and Credle, the principal debtors, from the payment of the incumbrances, Ayers was also released. the appeal, however, was erroneously granted, because it was premature. Exception should have been noted and the case proceeded with. Milling Co. v. Finlay, 110 N. C., 411; Walker v. Scott, 106 N. C., 56. Appeal Dismissed.