Tittle v. Bennett

To an action by the ordinary for use of J. A. Case against J. M. Sutton and Thomas Tittle, a general demurrer was filed by Tittle, who was the only defendant served. The demurrer was overruled,' and defendant excepted. Plaintiff' took a cross-bill of exceptions to other rulings not material here. The declaration sets forth the following: On December 7th, 1874, J. M. Sutton as principal, and Thomas Tittle and others named as securities, entered into an administrator’s bond for [406] tbe faithful performance by J. M. Sutton of his duties as administrator of the estate of Leroy Sutton, upon acceptance of which bond J. M. Sutton took possession of the estate. In his lifetime Leroy Sutton became bound as surety on the bond of one Jenkins as. guardian of his wards J. W. Williams and Jane Williams, the latter of whom married one Sammons. Jenkins died without accounting for his trust. While Leroy Sutton was so bound he applied to the ordinary to be released from the suretyship; whereupon the ordinary required Jenkins to give another bond, which he did, giving as one of his sureties J. A. Case. After the death of Jenkins, his wards, having arrived at majority, began their action against both sets of sureties, and on the trial recovered judgment, March 25th, 1887, against J. M. Sutton, administrator of Leroy Sutton, McKenzie Nicholas and J. A. Case, for $287.20 for the waste arising upon the bond first given by Jenkins, and $367.53 arising after the execution of the second bond and unaccounted for by Jenkins. During the pendency of said litigation, J. M. Sutton, administrator, went to J. A. Case, and not knowing how the accounting would show up, offered Case a proposition, that however it might turn out they would equally share the burden, to which Case assented. At the time of the rendition of the judgment in favor of the wards of Jenkins, J. M. Sutton had already converted into money the property of the intestate liable to levy and sale, and had himself removed to Tennessee. McKenzie Nicholas, the other surety, was wholly insolvent, having no property liable to seizure under the law, and Case was forced to pay off' the whole of the judgment, and the execution issued to enforce the same was returned by the sheriff' with an entry of no property as to Leroy Sutton, whereby J. M. Sutton as principal, and his sureties, became liable to an action to enforce contribution. All of said sureties except Tittle have [407] removed from the State, and have no property therein, except Larkin Payne who is dead, and there is now no administrator on his estate. W. U. & J. P. Jacoway, T. J. Lumpkin and Jones & Martin, for Tittle. R. J. & J. McCamy and McCutchen & Shumate, contra.