In 1885, T. D. McDowell, John A. McDowell and John McDowell, Jr., executed their promissory note to D. G. Robinson for $1,000, on which judgment was rendered in favor of Robinson at Spring Term, 1888. In August, 1892, Robinson assigned said judgment to A. E. McDowell, wife of John McDowell, Jr., in consideration of a policy of insurance on T. D. McDowell. In the assignment (247) of the policy of insurance Robinson agreed to pay to John McDowell, Jr., any excess that he might collect on said policy over and above the amount of said judgment, principal and interest, at the time he should recover or receive the money on said policy of insurance, and such costs and premiums as he might pay. John A. McDowell was a brother of T. D. McDowell, and John McDowell, Jr., a son of T. D. McDowell.
T. D. McDowell has since died. Robinson has collected the policy of insurance, and, after deducting the amount of said judgment, etc., has paid the residue to the defendant John McDowell, Jr.
T. D. McDowell left a last will and testament, willing and devising his whole estate, real and personal, to his son John McDowell, Jr., amounting to more in value than the Robinson debt, in which he made his son John McDowell, Jr., executor, and provides that he shall pay all his just debts.
John A. McDowell has also died, and the plaintiff, Newton Robinson, has administered on his estate; but, just before his death, execution was issued upon the said D. G. Robinson judgment, and levied on the property of John A. McDowell, and the Sheriff of Bladen County was proceeding to sell the same thereunder; and this action was brought by Newton Robinson, administrator of John A. McDowell, to restrain said sale and to have said judgment declared satisfied as to the estate of his intestate. He alleges that T. D. McDowell was the principal in said note to D. G. Robinson, and that John McDowell, Jr., and his intestate, John A. McDowell, were his sureties; that said judgment was assigned to A. E. McDowell, wife of John McDowell, Jr., in trust and for the benefit of her husband; that D. G. Robinson has been paid by the insurance money, and has no further interest in said judgment; that John McDowell, Jr., being one of the defendants in said (248) *Page 174 judgment, an assignment to him would have been a discharge of the judgment, and, for that reason, although he furnished the consideration which paid the judgment, he had it assigned to his wife.
The defendants John McDowell, Jr., and wife, A. E. McDowell, answer and say that said judgment was not assigned to the wife for her husband's benefit, and that she is the absolute owner thereof. They also deny that John A. McDowell was a surety of T. D. McDowell on the Robinson note, but that he was a coprincipal with T. D. McDowell, and the defendant John McDowell, Jr., was the only surety on said note; and that the estate of John A. McDowell is liable for one-half thereof at least.
The defendants further allege that since said judgment was assigned to A. E. McDowell, more than three years having elapsed without execution having been issued, the same was revived before the clerk, and this is an estoppel on the administrator of John A. McDowell.
This action was brought by the administrator of John A. McDowell to restrain the defendants from enforcing the Robinson judgment, assigned to Mrs. A. E. McDowell; and this presents two questions:
First. Was the judgment assigned to Mrs. McDowell in trust and for the benefit of her husband; and, second, was John A. McDowell a coprincipal in the Robinson note, or only a surety of T. D. McDowell?
If the judgment was assigned to Mrs. McDowell in trust for the benefit of her husband, John McDowell, Jr., he is the equitable owner thereof. The jury have found that the assignment to her was for his benefit, and this finding must stand unless there was error in the trial. Besides, the jury found that T. D. McDowell was the principal in said note and John A. McDowell was only surety; and this must stand unless there was error committed on the trial. If these findings (249) stand, it seems to us that they virtually dispose of the case.
It appears that the defendant John McDowell, Jr., has received property of greater value than the amount of this judgment, under the will of his father, T. D. McDowell, with the express injunction to pay his debts; and although the administrator of John A. McDowell is the plaintiff in this action, it involves the doctrine of contribution. If there had not been property enough of T. D. McDowell to satisfy the Robinson judgment, the defendant John McDowell, Jr., would have been entitled to contribution out of the estate of John A. McDowell to the extent of one-half of the amount that T. D. McDowell's estate would not pay. But, as T. D. McDowell is found to have been the principal and John A. McDowell a surety, and T. D. McDowell being dead and John McDowell, Jr., being his executor, with property enough in his hands to pay the judgment, his right to contribution is that of a principal who has paid the debt, suing his surety for contribution. *Page 175
As the claim of the defendant John is in the nature of contribution, neither judgment nor the renewal of the judgment is any estoppel upon the parties to show the relations they occupy, whether principals or sureties. Indeed, this is the usual way in which this question is presented. And as this is a question collateral to the note, it may be shown without producing the note, and it may be shown when it contradicts the note. Williams v. Glenn, 92 N.C. 253, 53 Am. Rep., 416. So there is nothing in the objection that the note was not present, or the manner in which its absence was accounted for. Nor can the exception to the exclusion of the evidence of John McDowell, Jr., under section 590 of The Code, be sustained, as the object of his testimony was to show that John A. McDowell was a coprincipal in the Robinson note; and if he could have established this, as he is the owner of the (250) Robinson judgment, it would have entitled him to recover one-half of the judgment out of the estate of John A., although he had property enough in his hands coming to him under the will of his father to pay the judgment. He was directly interested in this issue. Nor did the introduction of his affidavit entitle him to prove this fact. That was only as to the assignment of the Robinson judgment. Nor is there anything in the opinion of the Court (Robinson v. McDowell, 125 N.C. 337) that estops the administrator from claiming the relief he demands in this action. Indeed, so far as that case is authority, it is against the defendants' contention.
Affirmed.
(251)