Smith, C. J.,
after stating the cáse. We propose then to consider the sufficiency of the grounds upon which relief is asked, to warrant a reversal of the proceedings in equity under which the land was sold and the funds arising from the sale appropriated to the debt'due the testator.
1. The want of service upon some of the infant plaintiffs : While according to recent decisions jurisdiction over the person of infants is acquired only as in the other eases by the service of process on them, and then it is competent to appoint, in case there is no- general guardian, a guardian
ad litem,
to act in their behalf and to protect their interests, so-as to bind them by judicial action, a-different practice has long and almost universally prevailed in this state, and this power of appointment has been generally exercised without the issue of process, for the reason that no practical benefit would result to the infant from such service o>n him, and the court always assumed to protect the interests of such party, and to this end committed them to the defence of this special guardian. To declare the legal proceeding void for want of such service upon a few of the class of whom the larger number with identical interests in the result have been regularly brought into court, would be to establish a rulo subversive of much judicial action, unsettling titles dependent thereon, and introducing distrust and confusion in regard to the tenure of estates, the injurious consequences of which can hardly be foreseen or estimated, and we do not-feel at liberty after so long delay to disturb the decree on this ground. We are supported in this by former adjudications as to the practice. In
Stillwell
v.
Blair,
13 Sim., 399, there were several infant defendants in eou-rt, and for two who were absent the same guardian
ad litem
was appointed-on proof of their being alive, and a similar course was pursued where one was ill, in
Hill
v.
Smith,
1 Mad. Ch. Rep., 162; and again where one resided abroad. 19 Vesey, 357.
So, in
Bank of U. S.
v.
Ritchie,
11 Curtis, 46, where a guar
dian
ad litem
was appointed on motion of plaintiff’s counsel for certain infant defendants, without bringing them into court by process, or issuing a commission for the purpose of making the appointment, Chief Justice Marshall declares that it is usual to call in to their defence by such appointment their
“
nearest relation not concerned in point of interest in the matter in question,” yet there was no error in the action of the court. In the recent case of
Ins. Co.
v.
Bangs,
103 U. S. Rep., 435, the supreme court distinguishes the several cases cited to show the regularity of an appointment of a guardian
ad litem
for non-resident defendants, so as to bind them by the' decree in the cause, in that the suits related to property within the jurisdiction of the state courts, so holding, and over which they had control.
The practice, however, is regulated by statute, (C. C. P., §59,) and a previous service of process is required before the court can exercise the power of appointment.
2. The want of authentication by the signature of the judge to the decrees has never been held to affect their force where they were in fact rendered and filed among the papers, and even now under an act requiring such mode of authen-tition (acts 1868-’60, ch. 93, § 6), this is declared to be not essential to their efficacy as such.
Rollins
v.
Henry,
78 N. C., 342.
3. The alleged discrepancy in the case made in the bill and that upon which the dower right is founded, as presented in the record, is not such as to authorize the interference demanded. The equitable estate was supposed to be vested in Dalton, but is shown to be in the intestate’s heirs, to whom the right of dower was paramount, and this is so adjudged. The parties were all before the court,and whether the estate remained in Dalton or had revested in the intestate subject to the secured debt, it was equally liable to that debt, and no objection is made to the decree of sa’ie whic-h the facts charged fully warrant.
4. The substituted personal note of Dalton did not discharge the intestate’s debt nor relieve the trust fund of the obligation to pay it, and the testator was entitled to have it applied to his own debt in exoneration of the surety from both. It is not alleged that the creditor knew of the additional security provided by the principal and intended to surrender all claim thereto. To deprive him of this security without his intelligent assent to the surrender, would be a fraud upon his rights and will not be upheld in a court of equity. He therefore retains that security, and the application of the land to his operates also to discharge the original obligation upon the equitable principle of subrogation. The indemnity furnished by the principal to his surety enures to the benefit of the creditor and as a security for his debt,
(Morrill
v.
Morrill,
53 Vt.), which he may enforce whether the surety is or is not damnified. 1 Story Eq., §
499; Wiswall
v.
Potts, 5
Jones Eq., 184;
Bank
v.
Jenkins,
64 N. C., 719;
Harrison
v.
Styres,
74 N. C., 290.
5. The supplementary averment in the amended complaint of a fraudulent suppression by the administrator, Ed. M. Matthews, of facts known to him, and especially that his intestate had paid the very debt in suit, whereby the land was sold for a discharged demand then pressed, does not in our opinion justify the proposed interference. It is quite obvious that this matter was before the referees and passed on by them, and it is not charged or intimated that the omission to set up the defence, by whatsoever motive prompted, and whether available or not, if it had been, was in any way the result of collusion with the executor, or that the latter knew of or participated in the imputed fraudulent concealment. Unless he has, he cannot be deprived of the fruits of an adjudication reached in the
bona fide
prosecution of a claim believed to be due, because of the failure of an adversary party to make a successful resistance to the demand.
A decree or judgment equally as a deed procured by the practice of fraud by one upon the other may be annulled and set aside upon proof at the instance of the one who has suffered, and it is plain the present case does not fall within the rule.
A successful plaintiff cannot be made to lose the advantages of a favorable termination of his suit, because one or more of those who have antagonistic interests, have neglected to set up a defence, and sustain it by proof which might have been equally effectual and protective to all against whom the proceeding is directed. Were it otherwise, few suits would be determined by an adjudication, and the stimulus to make adequate preparation for resistance be greatly weakened and blunted. The policy of the law is expressed in the maxim,
interest rdpublicse ut finis sit litium.
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Smith, C. J.,
after stating the cáse. We propose then to consider the sufficiency of the grounds upon which relief is asked, to warrant a reversal of the proceedings in equity under which the land was sold and the funds arising from the sale appropriated to the debt'due the testator.
1. The want of service upon some of the infant plaintiffs : While according to recent decisions jurisdiction over the person of infants is acquired only as in the other eases by the service of process on them, and then it is competent to appoint, in case there is no- general guardian, a guardian
ad litem,
to act in their behalf and to protect their interests, so-as to bind them by judicial action, a-different practice has long and almost universally prevailed in this state, and this power of appointment has been generally exercised without the issue of process, for the reason that no practical benefit would result to the infant from such service o>n him, and the court always assumed to protect the interests of such party, and to this end committed them to the defence of this special guardian. To declare the legal proceeding void for want of such service upon a few of the class of whom the larger number with identical interests in the result have been regularly brought into court, would be to establish a rulo subversive of much judicial action, unsettling titles dependent thereon, and introducing distrust and confusion in regard to the tenure of estates, the injurious consequences of which can hardly be foreseen or estimated, and we do not-feel at liberty after so long delay to disturb the decree on this ground. We are supported in this by former adjudications as to the practice. In
Stillwell
v.
Blair,
13 Sim., 399, there were several infant defendants in eou-rt, and for two who were absent the same guardian
ad litem
was appointed-on proof of their being alive, and a similar course was pursued where one was ill, in
Hill
v.
Smith,
1 Mad. Ch. Rep., 162; and again where one resided abroad. 19 Vesey, 357.
So, in
Bank of U. S.
v.
Ritchie,
11 Curtis, 46, where a guar
dian
ad litem
was appointed on motion of plaintiff’s counsel for certain infant defendants, without bringing them into court by process, or issuing a commission for the purpose of making the appointment, Chief Justice Marshall declares that it is usual to call in to their defence by such appointment their
“
nearest relation not concerned in point of interest in the matter in question,” yet there was no error in the action of the court. In the recent case of
Ins. Co.
v.
Bangs,
103 U. S. Rep., 435, the supreme court distinguishes the several cases cited to show the regularity of an appointment of a guardian
ad litem
for non-resident defendants, so as to bind them by the' decree in the cause, in that the suits related to property within the jurisdiction of the state courts, so holding, and over which they had control.
The practice, however, is regulated by statute, (C. C. P., §59,) and a previous service of process is required before the court can exercise the power of appointment.
2. The want of authentication by the signature of the judge to the decrees has never been held to affect their force where they were in fact rendered and filed among the papers, and even now under an act requiring such mode of authen-tition (acts 1868-’60, ch. 93, § 6), this is declared to be not essential to their efficacy as such.
Rollins
v.
Henry,
78 N. C., 342.
3. The alleged discrepancy in the case made in the bill and that upon which the dower right is founded, as presented in the record, is not such as to authorize the interference demanded. The equitable estate was supposed to be vested in Dalton, but is shown to be in the intestate’s heirs, to whom the right of dower was paramount, and this is so adjudged. The parties were all before the court,and whether the estate remained in Dalton or had revested in the intestate subject to the secured debt, it was equally liable to that debt, and no objection is made to the decree of sa’ie whic-h the facts charged fully warrant.
4. The substituted personal note of Dalton did not discharge the intestate’s debt nor relieve the trust fund of the obligation to pay it, and the testator was entitled to have it applied to his own debt in exoneration of the surety from both. It is not alleged that the creditor knew of the additional security provided by the principal and intended to surrender all claim thereto. To deprive him of this security without his intelligent assent to the surrender, would be a fraud upon his rights and will not be upheld in a court of equity. He therefore retains that security, and the application of the land to his operates also to discharge the original obligation upon the equitable principle of subrogation. The indemnity furnished by the principal to his surety enures to the benefit of the creditor and as a security for his debt,
(Morrill
v.
Morrill,
53 Vt.), which he may enforce whether the surety is or is not damnified. 1 Story Eq., §
499; Wiswall
v.
Potts, 5
Jones Eq., 184;
Bank
v.
Jenkins,
64 N. C., 719;
Harrison
v.
Styres,
74 N. C., 290.
5. The supplementary averment in the amended complaint of a fraudulent suppression by the administrator, Ed. M. Matthews, of facts known to him, and especially that his intestate had paid the very debt in suit, whereby the land was sold for a discharged demand then pressed, does not in our opinion justify the proposed interference. It is quite obvious that this matter was before the referees and passed on by them, and it is not charged or intimated that the omission to set up the defence, by whatsoever motive prompted, and whether available or not, if it had been, was in any way the result of collusion with the executor, or that the latter knew of or participated in the imputed fraudulent concealment. Unless he has, he cannot be deprived of the fruits of an adjudication reached in the
bona fide
prosecution of a claim believed to be due, because of the failure of an adversary party to make a successful resistance to the demand.
A decree or judgment equally as a deed procured by the practice of fraud by one upon the other may be annulled and set aside upon proof at the instance of the one who has suffered, and it is plain the present case does not fall within the rule.
A successful plaintiff cannot be made to lose the advantages of a favorable termination of his suit, because one or more of those who have antagonistic interests, have neglected to set up a defence, and sustain it by proof which might have been equally effectual and protective to all against whom the proceeding is directed. Were it otherwise, few suits would be determined by an adjudication, and the stimulus to make adequate preparation for resistance be greatly weakened and blunted. The policy of the law is expressed in the maxim,
interest rdpublicse ut finis sit litium.
6. To entitle a party to a revision, on account of newly discovered evidence, the evidence must not be merely cumulative or additional to what was produced upon a point at issue, nor where by ordinary diligence it could have been discovered and used at the hearing, nor if in possession of the counsel or agv.-nt of the party. These requisites do not appear to have been met in the present application, and the knowledge was in one whose special duty it was to protect his intestate’s estate from a false claim if he could do so> It is admitted in the answer of Dalton to whom the secured note was transferred, that the intestate had never paid the debt, and to him alone and the holder of the substituted note could payment be made, and this admission under oath comes from the grandfather of the plaintiffs, and as evidence, has a force which can scarcely be out-weighed by an averment based on information and belief that the intestate had made payment.
It was a point presented in the pleadings necessary to the relief demanded and .assumed in the rendition of the award.
Love
v.
Blewit,
1 Dev.
&
Bat. Eq. 108;
Greenlee
v.
McDowell,
4 Ired. Eq. 481.
We have not considered the objection taken in the demurrer to the want of previous leave to bring the action, a practice under the old system necessarily abrogated under the provisions of the new, and so declared in
Bledsoe
v.
Nixon,
69 N. C., 81. The right to bring any proper action here rests with the plaintiff and the only conditions prescribed are those common to all suitors. C. C. P. § 71
etseg.
We must therefore sustain the demurrer and dismiss the action, and it is so adjudged.
No error. Action dismissed.