Susong v. Vaiden

• Decision Date: 29 October 1878
• Citation: 10 S.C. 247
• Parties: SUSONG v. VAIDEN.
• Court: South Carolina Supreme Court

10 S.C. 247

SUSONG v. VAIDEN.

Supreme Court of South Carolina.

October 29, 1878

Whatever may be the rule elsewhere, it is the well-settled law of this State that where a joint note is given by a principal debtor and a surety, whose only obligation arises from the fact that he signed the note, the death of such surety-the principal debtor surviving-does not discharge his estate or representatives from the obligation he incurred in giving the note.

Erroneous instructions to the jury upon immaterial points which could not affect the verdict is no ground for a new trial.

The rule that, where the obligation of the surety and principal is joint, the death of the surety leaving the principal surviving, discharges the estate of the surety, is not the rule in this State.

BEFORE NORTHROP, J., AT UNION, FEBRUARY, 1877.

Action by Alexander E. Susong against William H. Vaiden, and Margaret E. Bishop as administratrix of L. Gordon Bishop deceased.

The judgment was for the plaintiff, and the defendant, Margaret E. Bishop, appealed.

The case is fully stated in the opinion of the Court.

Munro & Munro , for appellant:

The action is upon a joint promissory note made by W. H. Vaiden and L. Gordon Bishop, payable to the plaintiff. The note was given for a debt due by Vaiden alone to the plaintiff, and Bishop was a surety only. Bishop, the surety, dying, leaving Vaiden, the principal, surviving, the action is brought against Vaiden and the administratrix of Bishop. Vaiden is insolvent.

The only point in this case is whether the estate of Bishop, the surety, is discharged from the payment of the debt. The note being joint only, the plaintiff cannot recover thereon against Bishop's administratrix.

Upon the death of one of the makers of a joint note his representatives are, at law, discharged, and the survivor alone can be sued.- Towers vs. Moor , 2 Vern. 98; Simpson vs. Vaughan , 2 Atk. 31; Richter vs. Poppenhausen , 42 N. Y., (3 Hand,) 375; Boykin vs. Watson's Administrators , 1 Tr. Con. Rep., 157.

If the joint maker, so dying, be a surety merely, his estate is absolutely discharged, both at law and in equity, the survivor only being liable.- Getty vs Binsee , 49 N. Y., (4 Sickels) 385; Pickersgill vs. Lahens , 15 Wall. 143; United States vs. Price , 9 How. 91; Rawstone vs. Parr , 3 Russell 424, 539.

This principle has been well settled and established by the Courts of this country and in England. It is fully discussed in the foregoing cases, wherein numerous authorities, American and English, are cited, all sustaining the doctrine and showing a uniform current of decision.

In the case of United States vs. Price , (9 How 91,) the Court say: " The obligation of a surety arises only from positive contract. The liability is construed strictly, both at law and in equity, and the liability of the surety cannot be extended by implication beyond the terms of his contract. If he contracts jointly with his principal, it is a legal consequence, known to all parties, that his personal estate will be discharged in case he should die before his principal. Such being the law, it may be considered as part of the written condition of the bond, and equity will not interfere to extend the liability as against his estate on the ground that such discharge arises from the mere technicalities of the law."

In Getty vs. Binsee , (49 N.Y. 385,) the Court, after saying the survivor is discharged at law, proceed: " It seems to be equally well settled that if the joint obligor, so dying, be a surety, not liable for the debt irrespective of the joint obligation, his estate is absolutely discharged, both at law and in equity, the survivor only being liable. In such case, where the surety owed no debt outside and irrespective of the joint obligation, the contract is the measure and limit of his obligation. He signs a joint contract and incurs a joint liability, and no other. Dying prior to his co-maker, the liability all attaches to the survivor."

In the case of Rawstone vs. Parr , (3 Russ. 424, 539,) creditors claimed to prove a joint note against the estate of a deceased surety, the surviving makers and principals being insolvent. The Master of the Rolls allowed the claim, but his decree was reversed by the Chancellor, Lord Lyndhurst.-See also notes to Thomas vs. Frazier , 3 Ves., Jr., 399.

The case of Pickersgill vs. Lahens , (15 Wall. 143,) is the latest, and is also directly in point. The Court say: " It is very clear that the estate of Lafarge is discharged at law from the payment of the obligation in controversy on the familiar principle that if one of two joint obligors die the debt is extinguished against his representative and the surviving obligor is alone chargeable. It is equally clear that in this class of cases, where the remedy at law is gone, as a general rule a Court of equity will not afford relief, for it is not a principle of equity that every joint covenant shall be treated as if it were joint and several. The Court will not vary the legal effect of the instrument by making it several as well as joint, unless it can see, either by independent testimony or from the nature of the transaction itself, that the parties concerned intended to create a separate as well as a joint liability. If, through fraud, ignorance or mistake, the joint obligation does not express the meaning of the parties, it will be reformed so as to conform to it. This has been done where there has been a previous equity which gives the obligee a right to a several indemnity from each of the obligors, as in the case of money lent to both of them. There a Court of equity will enforce the obligation against the representatives of the deceased obligor, although the bond be joint and not several, on the ground that the lending to both creates a moral obligation in both to pay, and that the reasonable presumption is the parties intended their contract to be joint and several, but, through fraud, ignorance, mistake or want of skill, failed to accomplish their object. This presumption is never indulged in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and, consequently, there is nothing on which to found an equity for the interposition of a Court of chancery. If the surety should die before his principal, his representatives cannot be sued at law, nor will they be charged in equity. The general doctrines on this subject were presented at large in this Court in the case of the United States vs. Price , (9 How. 91,) and they are sustained by the text writers and books of report in this country and in England."

The principle is recognized as well settled by the Court of Appeals of this State. Chancellor Harper, delivering the opinion of the Court in the case of Pride vs. Boyce , (Rice's Eq., 288,) says: " Upon an examination of the cases, they seem to establish a rule of this sort: that if the joint obligation be created merely by the bond or covenant where there was no previous liability, in that case no relief will be afforded against the estate of the deceased obligor in the event of the insolvency of the survivor; but if there was an antecedent debt to which both parties were liable, as in the case of partners, then the Court infers, without direct proof, that the instrument was made joint by mistake, and relieves, accordingly, by setting it up as a joint and several bond."

But it will be said the decisions in South Carolina are otherwise. The cases are three in number, to wit: Executor of Shubrick vs. Executor of Livingston , 1 DeS. 320; Lainhart vs. Administrator of Reilly , 3 DeS. 590; Smith vs. Martin , 4 DeS. 149. These cases are all upon joint bonds, and the estate of the surety was held liable; but the point was not urged that the estate of the surety was discharged because he was surety , but merely because he was dead . The argument was that the estate of a deceased joint obligor is discharged in equity as well as at law-this without reference to his situation, whether as principal or surety. This will appear from the opinion of the Court and the authorities cited by the Court and counsel. Not one of the authorities cited by the Court or counsel in either of the cases sustain the position that the estate of the surety will be held liable . In the first case, (Shubrick vs. Livingston ,) two authorities only are cited in the opinion, viz., Ratcliffe vs. Graves , (Vern., 196,) Skip vs. Huey , (3 Atk. 91,) in both of which the bonds were joint and several, and they were cited on another question. Simpson vs. Vaughan , (2 Atk. 31,) Bishop vs. Church (2 Ves. 100, 371,) and Rivers vs. Kennedy are cited by counsel. In the case of Rivers vs. Kennedy the bond was joint and several. In Bishop vs. Church the condition of the bond was joint and several, and each of the obligors participated in the consideration. [See this case cited in Hoare vs. Contencin , 1 Brown's C. C., 27; Rawstone vs. Parr , 3 Russ. 424, 539; Thomas vs. Frazier , 3 Ves. 399.] In Simpson vs. Vaughan the bond was joint only, but it was given by Nut & Baker, partners, (so styled in the bond,) for a joint loan, and for that reason the Court relieved. But the Lord Chancellor says " it cannot be laid down as an invariable rule that the Court will do it in every case."

In the second case, Lainhart vs. Administrator of Reilley , two authorities only are cited, viz Executors of Shubrick vs. Executors of Livingston, supra , and Madox vs. Jackson , 3 Atk. 406. In the case of Madox vs. Jackson , the bond was joint and several. Lord Thurlow says, in Hoare vs. Contencin , 1 Br. C. C., 27: " The case in Atkins [ Madox vs. Jackson ] has nothing to do with it; it is...