Hooker v. Yellowley.

ClaeK, J. This is an order for an injunction to the hearing, granted upon the complaint used as an affidavit. At the death of Edward 0. Yellowley, intestate, in 1885, his property descended to his sister H. A. Yellowley, his nephew J. B. Yellowley, the son of a deceased brother, and six nieces, the daughters of another brother. J. B. Yellowley qualified as administrator, with the defendant J. B. Cherry as one of his sureties, wasted the personal estate, became insolvent, and has removed from the State. The plaintiff, who was a creditor by bond of E. C. Yellowley, presented her bond to the administrator for payment, and repeatedly thereafter, who always promised to pay, but finally action was brought and judgment obtained, June, 1891. The said administrator failing to pay the same, though having sufficient assets in hand, the plaintiff commenced an action to December Term, 1894, of the Superior Court against him and the sureties on the administration bond, among them the defendant, who, having pleaded the Statute of Limitations at the hearing of the same, April Term, 1896, the jury, under the instructions of the Court, found that said sureties were protected by the Statute of Limitations. No part of plaintiff’s judgment has been paid, and it is still due. The intestate left, among other property, five thousand *299 acres of land, duly described in tbe complaint, one-third interest in which descended to J. B. Yellowley direct, and another third, under the will of Harriet A. Yellowley in 1890, and which he has not conveyed other than by a mortgage to the defendant, the surety on his administration bond, under which mortgage the defendant has advertised the land for sale. All the above allegations are admitted in the answer. The complaint further alleges that in March, 1891, the defendant Cherry caused said J. B. Yellowley to execute to him the aforesaid mortgage, which embraces also a lot in Green-ville owned by said Yellowley, to secure said Cherry from apprehended loss as surety on said administration bond, though at. the time no loss had occurred and Yellowley was not indebted to him. The answer avers that a few days after the execution of the mortgage the defendant did pay off a judgment for $1,575.00 taken against him as one of the sureties upon said administration bond. It is further averred and not denied, that J. B. Cherry obtained an indemnity bond from Harriet A. Yellow-ley in the sum of $3,000, by reason of his being surety upon the administration bond aforesaid, and has also taken a conveyance of the one-third interest of the six nieces in the estate and a release by them of all liability as surety upon said administration bond. The plaintiff asks that the mortgage and bond be declared without consideration, fraudulent and void, and for its cancellation; that J. B. Cherry account for such securities as he has received from J. B. Yellowley, and such securities and moneys as he has received from the co-sureties on the bond; that he be restrained from selling the realty under said mortgage, and that the land in question be sold by a commissioner, appointed in this cause, to pay the judgment in favor of the plaintiff, and such other (if any) debts of E. C. Yel-lowley remaining unpaid. *300 By virtue of Tbe Code, section 1442, tbe real estate of E. C. Yellowley in tbe bands of bis beirs-at-law, or in tbe hands of purchasers who took conveyances of tbe same, even after tbe lapse of two years, unless they are tona fide purchasers for value and without notice, is liable to payment of tbe debts of tbe intestate. If, instead of a mortgage to secure defendant from apprehended loss, tbe latter bad taken a conveyance for full value paid down, this land would still be subject to plaintiff’s debt, for defendant bad tbe fullest notice that the debts of tbe intestate, and especially this identical debt, bad not been paid, for be bad been sued on it in an attempt to make tbe sureties on tbe administration bond pay it. Tbe defendant does not deny tbe averment that be took this mortgage to secure himself against apprehended loss. So far from releasing tbe realty from liability to plaintiff, tbe mortgage would really inure to bis benefit, even if it bad been of other property of tbe administrator than that descended from E. C. Yellowley. Cooper v. Middleton, 94 N. C., 862; Brandt on Suretyship, sections 324 and 325; Sheldon on Subrogation, sections 154-156. And such property can be subjected even though tbe personal remedy against tbe surety is barred by tbe Statute of Limitations. Long v. Miller, 93 N. C., 227. Tbe defendant, surety on tbe administration bond, seems to have gathered in, in one way or another, a very large part of tbe property of tbe estate, and be took tbe same with notice of the unpaid indebtedness of tbe estate. His defence in tbe argument, here, that be is solvent, and tbe administration bond as representing tbe personalty must first be subjected before tbe realty, comes with poor grace when be and tbe other sureties thereon have in fact been sued and have protected themselves by a plea and an adjudication thereon in their favor that they are sheltered from liability by .the Statute of Limitations. Tbe liability of the realty to plaintiff is so well and thoroughly discussed in *301 Badger v. Daniel, 79 N. C., 372, that nothing further need be said. Hinton v. Whitehurst, 71 N. C., 66; S. C., 73 N. C., 157, and 75 N. C., 178. In continuing the injunction to the hearing there was no error. Heileg v. Stokes, 63 N. C., 612; Jarman v. Sanders, 64 N. C., 368. No error.