Carlton v. . Simonton

Supreme Court of North Carolina
Carlton v. . Simonton, 94 N.C. 401 (N.C. 1886)
MerbimoN

Carlton v. . Simonton

Opinion of the Court

MerbimoN, J.

(after stating the facts). Manifestly the plaintiff fails to allege such a cause of aotion, and to state such facts, *404 as entitle him to the relief by injunction which he seeks. Granting that the defendant loaned the money she borrowed from the-First National Bank of Charlotte, and for which she executed her promissory- note, to which the plain tiff was a surety, and which, he had to pay, to the Bank of Statesville, it does not follow that the debt due to her from the latter Bank, was in any way, either in law or equity, specifically applicable to the payment of the debt due from the defendant to the First National Bank of Charlotte, or to the payment of the debt due from her to the plaintiff, if she is indebted to him, for the consideration and as he alleges. The latter bank had no lien upon the debt due hei’, nor any equitable right to follow the money it loaned to her into the hands of' the Bank of Statesville. When she so borrowed the money, in-the absence of any special agreement, or fraud, it became hers, absolutely, and she might dispose of it as she saw fit, and justas-she could any other money or property she might have, unincum-bered.

The plaintiff certainly had the right to be subrogated to any specific right, lien or security the creditor had, as to the debt due the defendant in question, but it is not alleged, nor does it appear that the creditor bank had any such right or security.

The plaintiff seems to think, that, as he, as surety, had to pay the debt of the defendant, he had the equitable right to have the debt due her, the consideration of which is the money she borrowed, the note for which he had to pay, applied to the payment off his debt against her. This is a misapprehension of the law. If a principal borrow money, give his note for the same with surety, and the surety afterwards is compelled to pay the note, this does not give the surety any lien or specific equitable right, to resort to and have the property, right or credit, the principal may have obtained with the very money he so borrowed, applied to the payment of his debt. In such case, the surety stands upon no better footing than any other creditor of the principal. The surety is simply a creditor of the principal without security. Miller v. Miller, Phil. Eq., 85.

*405 It would seem at first view, that in natural justice, the surety ought to have the right to be substituted as the owner of the specific right or property the principal acquired with the very money he borrowed, because the surety indirectly, in effect, paid the consideration for it. But the complicated interests of society, the constant and rapid dealings of men with each other, the ■difficulty experienced in tracing the investment and application of money, and like considerations, make it necessary to treat the surety as an ordinary creditor, and to give his debt no special -advantage over the just debt of any other creditor. It may be said, the surety, when he becomes such, does so voluntarily, and ■consents to accept the fortunes of the course of business transactions, good or ill.

The order appealed from must be affirmed, and to that end, let this opinion be certified to the Superior Court. It is so ■ordered.

No error. Affirmed.

Reference

Full Case Name
P. C. Carlton v. Roxana Simonton.
Status
Published