Arrington v. Arrington

• Decision Date: 11 March 1889
• Citation: 9 S.E. 200,102 N.C. 491
• Parties: ARRINGTON v. ARRINGTON et al.
• Court: North Carolina Supreme Court

9 S.E. 200

102 N.C. 491

ARRINGTON v. ARRINGTON et al.

Supreme Court of North Carolina

March 11, 1889

Appeal from superior court, Vance county; SHEPHERD, Judge.

Action by Pattie D. B. Arrington against B. L. Arrington and John P Arrington, executors and devisees of A. H. Arrington deceased, Thomas M. Arrington, A. H. Arrington, Samuel Arrington, George Arrington, Robert W. Arrington, and J. C Arrington, also devisees of said A. H. Arrington, and W. L Thorpe, sole devisee under the will of Mary Thorpe, deceased, who was also a devisee of said A. H. Arrington, deceased, John W. Blount, administrator, etc., of Thomas Cooper, deceased, and W. H. Williams and O. Williams, his wife, (formerly O. Cooper, and widow of said Thomas Cooper,) and Lilly Cooper, and heir and distribute of said Cooper. The object of the suit was to enforce the payment of a judgment recovered by said plaintiff and her former husband, W. H. Arrington, against said A. H. Arrington, deceased, and Thomas Cooper, deceased, as sureties for L. N. B. Battle. Pending the action W. H. Arrington became a party defendant, as did also certain creditors, W. H. Morris & Sons, and Spier Whitaker, to whom said W. H. Arrington had assigned said judgment. These last named parties set up their claim to the judgment, denying that the plaintiff had ever been legally divorced from said W. H. Arrington. The decree sustained some exceptions to the reports of the referees, and overruled others, and the defendants appeal.

Where, after the lien of a judgment attaches to land of a testator, the devisees make partition among themselves, and the creditor releases one of the shares from the lien, such release does not impair the right of the creditor to enforce the lien against the residue of the land.

Jacob Battle and E. C. Smith, for appellants.

Spier Whitaker, for respondent.

SMITH C.J.

W. H. Arrington and Pattie D. B. Arrington, then his wife and sole plaintiff in the present suit, brought their action as relators in the name of the state against her guardian, L. N. B. Battle, A. H. Arrington, and Thomas J. A. Cooper, sureties to the guardian bond, and others, for the trust estate which had been wasted; and at fall term, 1871, of the superior court of Franklin, recovered judgment for $8,878.30, with interest thereon from January 1, 1871, and costs. The judgment was docketed in that county on September 11, 1871, and in Nash county on April 1st of the next year. The present action is prosecuted by the said Pattie D. B. as a feme sole, upon an allegation that she has been divorced, by a decree dissolving the bonds of matrimony, from her husband, and is prosecuted to subject the personal, and, if insufficient, the real, estate of the deceased sureties, A. H. Arrington and Thomas J. A. Cooper, to the payment and satisfaction of said debt; the guardian being insolvent himself, and having, as administrator of the remaining surety, John Evans, wasted his estate. The action is against the devisees and executors nominatim of the estate of A. H. Arrington, the administrator and heirs at law of Thomas J. A. Cooper, and his widow and her second husband, and others, among whom have become parties defendant Spier Whitaker, trustee, and W. H. Morris & Sons, claiming as assignees of the fund from the husband, W. H. Arrington. The object of the suit is to have an account taken of the personal and real estate of the said deceased sureties in the hands of their representatives, devisees, and heir, and, if the former prove insufficient, for a sale of said lands, and the appropriation of the proceeds as far as needed to the discharge of the said judgment. Answers were put in, and a reference ordered, in response to which a report was made by E. S. F. Giles of the administration accounts of the executors of A. H. Arrington with the estate of their testator, and of J. W. Blount, administrator of Thomas J. A. Cooper, with the intestate's estate. From this report it appears that the personal estate of A. H. Arrington has been fully administered and exhausted, leaving a sum overpaid and due the executor J. P. Arrington of $2,678.71, and in like manner due the executor B. L. Arrington of $69.71, computed to September 1, 1882. It further appears that the defendant J. W. Blount has in his hands, ascertained and due, December 4, 1882, an unexpended surplus of $2,985, and that the intestate in his life-time paid on the judgment, with interest added, $3,644.44, and his administrator has since paid on it $4,771.84. It further appears from an exhibit that W. H. Arrington and wife, in October, 1878, after the rendition of the judgment in their favor, made a deed to John P. Arrington, one of the executors of A. H. Arrington, and a devisee under his will, conveying all their "right, title, and interest" in, and releasing from the lien of their judgment and all other liens they may have, a tract of land described and supposed to contain 500 acres, allotted to said John P. Arrington in the division of the testator's lands; such interest being declared to be by reason of said judgment against the executors docketed in Nash county, wherein the land lies.

Under another order of reference, made at fall term, 1883, to R. A. P. Cooley in the present suit, and after the removal of the cause to the superior court of Vance county, he reports as follows: "The payments made by Blount, administrator of the surety Cooper, out of the assets in his hands, between September 25, 1874, and July 16, 1878, are in amount $3,557.45, while those made by the executor, John P., between February 1, 1875, and February 15, 1876, are in the aggregate $2,000. The residue of the judgment after the last payment in July, 1878, due at that date, is $6,688.93, which sum, with interest to December 1, 1884, $2,558.51, makes an aggregate due at that date of $9,247.44. Of this sum, in an adjustment between the estates of the sureties, that due from Cooper at the date aforesaid is $3,489.13; and from Arrington is $5,758.30. The value of the land released from the judgment lien is $4,000, and that of the residue of the real estate of the testator, A. H. Arrington, situated in this state is $25,000, while, he owned real estate in Alabama of the value of $14,500. There is a mortgage deed executed on June 25, 1872, by one W. H. Rowland to the testator, A. H. Arrington, as an indemnity against loss from suretyship on the former's administration bond, reported by the referee, on the liability whereof he finds due on December 1, 1884, the sum of $7,568.87, consisting of principal and interest. The referee finds to be due on outstanding liabilities of the testator's estate $6,612.14, whereof is due on the judgment $5,758.30, and to one Nancy Bunn $853.84, and the liabilities of the estate of Cooper on the judgment $3,489.13. These are the only unsatisfied claims against the two estates."

These two reports were confirmed by the court, with the proviso that the defendants other than W. H. Arrington and his assignees, who were authorized to file an amended answer at the term, "may urge the defenses set up in the said amended answer in reduction of the amount due on the judgment described in the complaint, or in the discharge thereof." It was further adjudged that out of the estate of said A. H. Arrington there be paid to Spier Whitaker, trustee, $1,550, with interest from September 8, 1882, and the costs in the suit of G. S. Alford v. J. P. Arrington, pending in Nash superior court, and that subject thereto the balance due the executors be retained; that all other debts due said estate, as set forth in the two referees' reports, be paid by the executors; and that the cause be referred to said Cooley, "to find all issues of law and fact relating to the matter of defense set up for the first time in the amended answer," with certain other matters not necessary to mention, "with leave to the plaintiff, the said W. H. Arrington, and his assignees, within sixty days, to reply thereto." The reference accordingly made his report, submitting the evidence, from which, and the pleadings and admissions of parties, he finds:

"That the said W. H. Arrington and the feme plaintiff intermarried in February, 1868, and prosecuted their suit upon the guardian bond against L. N. B. Battle, the principal, and the executors of the surety, said A. H. Arrington, and Thomas J A. Cooper, a living surety, and others, and made the recovery already stated. That the only solvent sureties on the bond when judgment was rendered, and since, were said A. H. Arrington and said Cooper, and said judgment was also entered in Franklin superior court against L. F. Battle, and was docketed in Nash county on April 2, 1879.

"(5) That sundry payments have been made on said judgment by the personal representatives of A. H. Arrington and Thos. J. A. Cooper, which leave a balance appearing to be due on the 1st day of December, 1884, of $9,247.44, with interest on $6,688.93 from December 1, 1884. The amount due December 1, 1884, from Arrington's estate, was $5,758.30; from Cooper's estate, $3,489.13, as then appeared.

"(6) That A. H. Arrington died on the ___ day of ___, 1871 leaving a last will and testament, which was duly proved and recorded in Nash county, and the executors therein named who have duly qualified as such are the defendants J. P. Arrington and B. L. Arrington, and the said testator's devisees are the following: (a) J. P. Arrington; (b) Mary Thorpe, wife of W. L. Thorpe, (she is now dead, and W. L. Thorpe is her sole devisee;) (c) Thomas M. Arrington; (d) A. H. Arrington; (e) S. L. Arrington; (f) George Arrington, (he has died since the commencement of this suit, unmarried, without issue, and intestate;) (h) Robert W. Arrington; (i) J. C. Arrington, who appears by his general...