#### BENNET HOCKADAY, Adm’r. of NORMAN MATTHEWS v. ANSON PARKER.

Where the land of one of two sureties of a third person was sold under execution for the debt, and the other surety bid it off, it was Held that an agreement for the owner of the land to pay the debt, and take an assignment of the bid to him, was not affected by the statute of frauds.

This was an action of assumpsit, tried before French:, J., at the last Fall Term of Harnett Superior Court.

The plaintiff declared for money paid by his intestate as co-surety with defendant for one Strickland. A judgment had been obtained on the debt against Strickland and the *17two sureties, Matthews and Parker, (plaintiff’s intestate and the defendant) and execution thereon was levied, on.- Matthews-’ land, which was sold and bid off by Parker and one Stewart. They, after this, came to an agreement, that Matthews should take the whole debt on himself and; should satisfy the execution ; in consideration of which understanding, they assigned their bid for his land to him.

The counsel for the plaintiff requested the Court to charge the jury:

1. That the agreement of the intestate (Matthews) to satisfy the execution upon the assignment of the bid of Stewart and the defendant, not being reduced to- writing, was void under the statute of frauds. The Court declined to give this instruction.

2. The plaintiff then asked his Honor to instruct the jury, that if they believed the evidence for the defendant,.there was combination, and fraud on the part of Stewart and the defendant, and that the plaintiff conld not recover.

3. That if the jury believed that the promise-of the-plaintifif was merely to satisfy the execution and not to discharge the defendant from his liability as suretjq the plaintiff was entitled to recover.

The hist two instructions the Court declined giving, for the reason, that there was no evidence to sustain them. Plaintiff’s counsel excepted.

Yerdict for defendant. Judgment and appeal by. plaintiff.

Neil McKay, for the plaintiff.

No counsel appeared for the defendant) in this Court-.

Manly, J.

An analysis and proper understanding of the-facts of this case, will show, as we conceive, that the instruction first asked for by the plaintiff, is based upon an erroneous view of their substance and effect. The engagement of the plaintiff’s intestate to pay the whole judgment against himself and Parker, as the sureties of Strickland, is not a promise to pay the debt of another, but an undertaking on the part of. *18Matthews, for a consideration, to make that debt his own in respect of his co-sureties.

It wae¡ competent for Matthews to make this arrangement, which was simply a mode of making payment for the assignment of the right to call for a title to the land. His promise to pay a specific sum to Parker for the right, would have been obligatory as a promise based upon a sufficient consideration moving from one party to the other. It does not change the nature or binding force of the promise, that it is to extinguish a debt which Parker owes to another. It is still a mode by which Matthews pays his own debt, and the promise, on his part, is simply to that purport and effect. The provision, therefore, of the Eevised Code, (chap. 50, sec. 15) opposes no obstacle to the legal efficacy-of the, intestate’s agreement. Nor does the eleventh section stand in the way ; for the Court has repeatedly held that an assignment of a bid at a sale of lands, under a fi. fa., is valid, without writing.

The view which we have thus taken of the promise of Matthews, disposes of the merits of the case in respect of all redress in a court of law. The promise of Matthews being to pay his bwn debt, it follows when he paid it, it was not money paid (is the co-surety of Parker and to his use, for which the statute gives the remedy, at law, Eevised Code, eh. 110, sec. 2.. *Ihe substance of the Court’s instruction, therefore, was correct, viz., that upon the evidence, the plaintiff could not recover.

The dubious aspect of the case has arisen out of the unexplained and surprising folly of a man, who being able to pay, buffers his land to be sold at a sacrifice and immediately buys it hack at a great advance. We are unable to understand this from any thing stated in the case. Whether it may not have 'been effected by combination and fraud between Parker and |3tewart and others, as suggested in the second prayer for instruction, we cannot say. Such fraud might account for it,, ¡but we find no proof to sustain the suggestion.

- The instruction asked for, therefore, in the second place, was properly refused by the Court, because it was hypothetical *19and without evidence to sustain it. If there had been evidence, the remedy would probably have been held to be in another forum ; where the parties might be regarded as still standing in the relation of co-sureties, notwithstanding the agreement and promise to the contrary.

The instruction asked for in the third place, stands upon the same footing with the last, resting upon no foundation in the proofs. It was, also, properly refused by the Court.

There is no error,

Pee Curiam,

Judgment affirmed-.