Thigpen v. . Price

62 N.C. 146

• Court: Supreme Court of North Carolina
• Decided: January 5, 1867
• Status: Published

Opinion

Pearson, C. J.

There is no error in the order appealed from.

The demurrer is general. Neither of the grounds taken at the bar in support of it is tenable.

Sureties may file a bill to have a debt paid by the principal, or out of his estate, for their exoneration, before they are forced to pay the debt. This is settled. See Miller v. Miller, decided at this term, ante, p. 85. It follows that, although the bill might have been sustained without making these parties complainant, it is not error to^oin them as complainants in a bill to enforce a trust for th.e payment of the debt.

The second ground is also untenable.

The allegation of the bill is that Whitley conveyed his. resulting trust to Baker, under whom the defendants Bobbitt and wife are in possession; and taking that to be so, their possession is not adverse. They may be entitled to the excess of the proceeds of sale after paying off the debts, secured by the trust deed.

This will be certified.

Per Curiam.

Demurrer overruled.