Anderson v. Trueman

• Decision Date: 04 September 1930
• Citation: 130 So. 12,100 Fla. 727
• Parties: ANDERSON v. TRUEMAN et al.
• Court: Florida Supreme Court

130 So. 12

100 Fla. 727

ANDERSON v. TRUEMAN et al.

Florida Supreme Court

September 4, 1930

En Banc.

Suit by A. M. Anderson, as receiver of the First National Bank of Lakeland, against H. A. Trueman and others. From an adverse decree, complainant appeals.

Reversed. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

Judson & Bentley, of Lakeland, for appellant.

Summerlin & Wimberly, of Winter Haven, for appellees.

OPINION

TERRELL C.J.

This cause grew out of the following transaction: In September 1927, H. A. Trueman and Minnie L. Trueman, his wife, and L L. Kirkpatrick and Charlotte Kirkpatrick, his wife, executed their joint mortgage to the First National Bank of Lakeland Fla., describing certain land in Polk county. The said mortgage was given to secure a promissory note of the same date made in favor of the mortgagee for the sum of $22,500, signed by H. A. Trueman and L. L. Kirkpatrick and payable one year after date.

When the note matured the mortgagors were not in position to pay, so with the consent of the mortgagee it was renewed for a period of ninety days on consideration of the payment of interest. On the second maturity date the mortgagors were still unable to pay and a like indulgence was granted. Other indulgences were granted; but in the meantime, the mortgagee, First National Bank of Lakeland, suspended business, and A. M. Anderson was appointed as its receiver under the laws of the United States. In November, 1929, as such receiver A. M. Anderson brought his suit in chancery to foreclose the mortgage as above described; the said note attached thereto and secured thereby being past due, all indulgencies having expired, and no part of the principal thereof having been paid. On motion of appellant a receiver was appointed to take charge of and manage the mortgaged premises. In December, 1929, a demurrer to the bill of complaint was sustained and the receiver was discharged. Appeal was taken from both said orders.

If the order sustaining the demurrer was correct, then the discharge of the receiver followed as of right and no error was committed in that order. In this situation it only becomes necessary for us to adjudicate the correctness of the order sustaining the demurrer.

The decisive question raised by the demurrer and brought here for our adjudication is whether or not the repeated indulgencies granted on the payment of the original note without the approval of Mrs. Trueman and Mrs. Kirkpatrick had the effect of discharging the mortgage and releasing the lands described therein as surety for the payment of the said note.

Appellant contends that the question of suretyship is not involved, that the mortgage was made to secure the payment of a debt of which the note was the mere evidence, and that any change in the form of the evidence of the debt does not have the effect of discharging the mortgage. The appellees, on the other hand, contend that the lands described in the mortgage being held by them by the entireties was in the same status as other married women's property in this state, that it was pledged by them as surety for the payment of the debt, and that the indulgencies granted, not having been approved by Mrs. Trueman and Mrs. Kirkpatrick, were in effect a release and discharge of the sureties and the mortgaged premises. The chancellor below appears to have taken the view as contended for by appellees.

A 'surety' is one bound with his principal for the payment of a sum of money or for the performance of some duty or promise and who is entitled to be indemnified by some one who ought to have paid or performed if payment or performance be enforced against him. It differs from 'guaranty,' in that the latter is the maker's own separate contract, guaranteeing performance.

The law is well settled in this country that an extension of time or the material alterations in the terms of payment of a promissory note without the approval of the surety discharges him and the security given. Frank v. Williams, 36 Fla. 136, 18 So. 351; Slottow v. Hull Investment Co. (Fla.) 129 So. 577, decided at this term: Jenkins v. Daniel, 125 N.C. 161, 34 S.E. 239, 74 Am. St. Rep. 632, Commercial Savings Bank of Carroll v. Dunning et al., 202 Iowa, 478, 210 N.W. 599, 59 A. L. R. 983, note 988. Citing many cases. Thompson on Real Property, §§ 4445 and 4446, pages 563 and 566.

In the case at bar, w...