HENRY TATUM and JAMES NELSON vs. DUDLEY TATUM and ALLEN TATUM, Administrators of HERBERT TATUM, deceased, and against the said DUDLEY TATUM in his own right.
Where A., owii^r a debt, maltes a conveyance of personal property, without consideration, the sureties to that debt, who have been compelled to pay it, and have afterwards established their claim at law against such debtor, are entitled to be substituted to the rights of the creditor in this Court, and to have a decree for the sale of such property to_satisfy their demand — all the other property of the'debtor being exhausted.
Where the sureties had brought an action upon such claim against the administrators, the donee of the property being one of the administrators, and the plea that they had fully administered was found in their favor, this is no bar to the bill of the sureties to subject this property^ when the administrators do not rely upon the verdict and judgment at law as a defence, but admit in their answers that the property in question was not considered by the jury in their computation of assets. Whether the verdict and judgment at law would have been a bar, but for these admissions, Quere?
Nor is it any objection to the plaintiff’s recovery in this case, that they proceeded against the lands, which proved insufficient to satisfy their demand.
This was a case which had been set for bearing in Guilford Court of Equity, upon the bill, answers and exhibits, and transmitted by order oí that Court to the Supreme Court.
*114The bill, which was filed at Spring Term, 1835, charged ^at ^er^ert Tatum died intestate, in the year 1829; and that letters of administration on his estate had been duly granted to the defendants; that the said Herbert, for some time before his death, was greatly indebted; that the plaintiffs, together With Alien, one of the defendants, had, in August, 1829, become sureties for the said Herbert in a guardian bond, which he had given as guardian to certain wards; that these wards had afterwards recovered a judgment against the said sureties for about the sum of $359, on account of a breach of the said bond; that the amount so recovered was paid jointly by ‘the sureties, and a receipt was taken in the name of the plaintiff Henry; that Henry then brought a suit against the administrators of Herbert, to recover the sum so paid, and at February Term, 1832, of Guilford County Court, obtained a judgment therefor, but the plea offully administered was found in favor of the administrators; that the plaintiff Henry then proceeded against the real estate, but could only obtain, by the sale thereof, a portion of the debt, to vjit, the sum of $173; that the balance of the debt remained unsatisfied, there being no personal property in the hands of the administrators, which could be treated as assets, nor any real .estate remaining in the hands of the heirs. The bill further charged that the said Herbert Tatum, two days before his death, to wit, on the 31st of August, 1829, executed a deed of gift to the defendant, Dudley Tatum, fur two negro slaves, Sam and ‘Rachel, without any consideration except that of natural affection; that the said Herbert, at that time, .was not only indebted to others, but also owed the debt which the plaintiffs were compelled to pay as sureties; and the bill charged that this conveyance was fraudulent and void as to creditors; and that the plaintiffs had a right to be substituted in the place of the creditors, whose demands they had paid as above set forth; and, after alleging a demand and refusal, prayed that the said Dudley Tatum might be decreed to pay the plaintiffs their claim, to wit, two thirds of the debt before mentioned, or that the slaves, Sam and Rachel, might be decreed to be sold for the satisfaction thereof.
The defendants in their answers admitted all the material *115facts stated in the plaintiffs’ bill, except that they did not mit that the said Herbert died insolvent; but averred that his lands had sold for a fair price, there would have been enough to discharge his debts. They submitted whether, as the plaintiffs had elected to go against the real estate of the said Herbert, they should now be permitted in this Court to pursue the negroes mentioned in their bill, in the hands of the defendant Dudley. They also relied upon the general act of limitations, and also upon the act passed in 1820, in relation to the possession of slaves, (1 Rev. St. c. 65, s. 18.)
W. A. Graham for the plaintiffs.
No counsel for the defendants.
Daniíjl, Judge,
after stating the case, proceeded as follows. There is no allegation that the plaintiffs, by any misconduct or management, caused the lands to sell for less than their real value. We must take it, therefore, that the lands brought what they were worth at a ready money sale.
The plaintiff*, in this Court, are subrogated to all the rights of the creditors, whose debts they have been compelled to pay. They have certainly a right to satisfaction, in some way, out of the slaves transferred without consideration by the debtor to Dudley Tatum, by force of the statute of 13th Elizabeth, and our act of Assembly, (1 Rev. Stat. c. 50, s. ],) as all the rest of the personal and real assets, liable to debts, had been exhausted. It has been doubled, however, whether the plaintiffs were not estopped to consider the two slaves as assets of the intestate, inasmuch as the plea otpleneadministravit was at law found against them, and non constat but that the two slaves were taken into consideration as assets by the jury, and were covered by that finding. But it is apparent, upon the answers, that the two slaves were not brought to the consideration of the jury as assets of the intestate, when they found the issue for the defendants.. And the defendants have not set up the verdict and judgment at law as a defence, either by plea or in the answers, against an investigation in this Court, whether these negroes are not in truth assets, and, as such, liable to the satisfaction of the plaintiff’s judgment. The plaintiffs are, we think, entitled *116to a decree, that the two slaves mentioned be sold for the sat-of their debt.
The circumstance of their having first pursued the land, is no bar to their now proceeding against these slaves, as the land proved insufficient to satisfy the debt.
We are at a loss to see that the statutes of 1715, (1 Rev. Stat. ch. 65, s. 3,) and of 1820 (1 Rev. Stat. ch. 65, s. 18,) relied upon in the answers, have any application.
Per Curiam. Decree accordingly.