Dempsey Bryan, on the other hand, in his petition, set forth the above mentioned particulars respecting the discount and payment of the note, and insisted that as the proceeds of the note went to the use of Bell's estate, he, the petitioner, being a surety, was to be substituted to the rights of Barnes against the estate of the testator, and had a better equity to the money in court than the other petitioners. *Page 125 The defendant Barnes, by his deed of assignment in favor of his creditors, transferred and assigned over to the trustees therein named considerable real and personal estate particularly described, and all other real and personal property of which he was seized or possessed, all book debts, bonds and notes of every description; and the trustees are directed to collect the debts, whether due by bond, note, open account, or otherwise. He also expresses that the trustees shall have and hold the real and personal estate, and choses in action, and accruing interests, with the appurtenances, etc., in trust, etc. I am inclined to the opinion that this general description of property includes any balance that might be due to Barnes from the estate of Whitmell Bell. Bayardv. Hoffman, 4 Johns, ch., 450. Neither is that opinion varied by a clause in the latter part of the deed of assignment, in which he reserves the right to apply so much of the funds as shall be requisite and necessary to the settlement of his accounts as executor of Whitmell Bell. This clause was only inserted to secure that estate against loss by his insolvency, and can have no application where it turns out that the estate is in debt to him. But this view of the case arises only from the deed of assignment, and the account that has been taken, and now made an exhibit, between Barnes and his testator's estate. From that account it appears that the estate of Whitmell Bell falls in debt to Barnes in the sum of $1,375. It is necessary to consider how that balance arose, and this leads us to the consideration of Dempsey Bryan's petition. It appears from an exhibit in the case, which is admitted to be evidence, that Dempsey Bryan became an endorser for Elizabeth Bell on a note to the bank at Tarboro for $2,500, in 1826; that in 1828 David Barnes, the defendant, renewed the note in his own name, and as executor for Whitmell Bell, with Dempsey Bryan as surety or endorser, for the balance of the money due on Elizabeth Bell's note, which was (150) $1,800. This note was renewed by the same parties on 9 December, 1828, for $1,600. Suit was brought upon it, and the judgment was paid off by Bryan. It is to be observed, too, that part of the money for which Elizabeth Bell gave her note to the bank had been received by her husband. After his death his note was renewed by Barnes as executor, with different endorser, up to the time when Elizabeth Bell gave her note with Bryan as her endorser. It appears from this statement, and it is admitted by Barnes in his answer, that the money thus obtained from the bank was applied to the use of Whitmell Bell's estate; and it is owing, no doubt, to that application of it that a balance has been found in favor of Barnes in his settlement of that estate; for if Barnes had paid the *Page 126 debt due to the bank, his claim to it would be both legal and equitable. But that debt was discharged by Bryan, and he ought to stand in the room of Barnes as to that balance coming from Bell's estate; for the money borrowed from the bank, which he had discharged, has produced it. No doubt, this construction of the transaction occurred to Barnes when he drew the deed of assignment; for if $1,600, the amount paid by Bryan, is deducted from his credit in his account with Barnes' estate, he would have fallen two of three hundred dollars in debt to it; and therefore it was that he made provision against loss to that estate on account of his insolvency.
It is for these reasons, and from this view of the case, that I think the prayer of the petitioner Bryan ought to be granted.
RUFFIN, J., dissented, but delivered no opinion.