Bridges v. Blake

• Decision Date: 12 May 1886
• Citation: 6 N.E. 833,106 Ind. 332
• Parties: Bridges, Adm'r, v. Blake and others.
• Court: Indiana Supreme Court

106 Ind. 332

6 N.E. 833

Bridges, Adm'r,

v.Blake and others.

Supreme Court of Indiana.

May 12, 1886.

Appeal from Marion superior court.

Claypool & Ketcham, for appellant.

Rand & Winter, for appellees.

Mitchell, J.

Bridges, as administrator of the estate of Jesse Blake, deceased, commenced this suit against William M. and Mary E. Blake to foreclose a mortgage executed by the latter to the plaintiff's intestate in 1863.The mortgage was given to secure one note of $1,312, dated December 2, 1855, due one day after date, payable to Jesse Blake by James Blake, as principal, and James M. Ray and William M. Blake as sureties; also one note for $600, dated May 21, 1885, payable to Jesse Blake by James Blake.The second paragraph of the separate answer of Mrs. Blake alleged, in substance, that the property mortgaged was her separate estate.It was also averred that the notes secured by the mortgage were for the debts of James Blake, upon one of which notes her husband was bound with James M. Ray as surety; that both notes secured by the mortgage were for pre-existing debts of James Blake, for which she was in no manner liable; and that there was no new consideration, either to her or to the makers of the notes, for the execution of the mortgage.The sixth paragraph of the joint answer of William M. and Mary E. Blake presents substantially the same question as the separate answer above referred to.

From these answers it appears that the debts which the mortgage was given to secure had been incurred by James Blake some eight years before the mortgage was executed.The mortgage was upon the separate property of Mrs. Blake, and in her answer it is averred that there was no new consideration for its execution.This was a good answer.While it is true, as is contended, that, at the time the mortgage in question was executed, it was competent for a married woman to incumber her separate property for the debt of a third person, it was nevertheless necessary that there should have been a valid consideration for the mortgage.Because her husband was surety for the debt which the mortgage was given to secure, did not dispense with the necessity for an adequate consideration.Contracts of suretyship, like all others, must have a sufficient consideration for their support.The consideration may be the credit originally given to the principal; but if the contract between the creditor and principal has been fully consummated, and the debt for which the surety is to be bound has already been incurred, then, in order to the validity of a contract of suretyship subsequently entered into, a new and distinct consideration must appear.Davidson v. King, 51 Ind. 224;Crossan v. May, 68 Ind. 242;Favorite v. Stidham, 84 Ind. 426; Jones, Mortg. par. 615.

It is said that it does not appear in the joint answer of Blake and wife which of the two owned the property at the time the mortgage was made.However this may be, it does appear that the mortgage was made to secure the pre-existing debt of James Blake, upon which William M. Blake was bound as surety only, and that there was no new consideration for the mortgage.That being the case, it was a sufficient answer for both.A pre-existing debt may be a sufficient consideration, as between the principal and his creditor, to support a mortgage executed by the principal debtor; but where one who is bound only as surety executes a mortgage to secure the pre-existing debt of a third person, upon which he is already bound, it is essential to the validity of such mortgage that a new consideration should be shown.In such a case, giving a mortgage is a new contract of suretyship, and this new contract requires a new and distinct consideration to support it, in the same sense that the original contract did.Brandt, Sur. §§ 9-21;Bingham v. Kimball, 17 Ind. 396;Starr v. Earle, 43 Ind. 478;Clodfelter v. Hulett, 72 Ind. 137.

There was no error in sustaining the demurrers to the second and sixth paragraphs of the reply.The facts pleaded in these replies tended to show a consideration for the execution of the mortgage.There were other paragraphs under which all the facts relating to that subject were provable.

We are asked to review the evidence, and reverse the judgment for the reason, as it is said, that it does not sustain the finding of the court.On behalf of the appellees it was claimed the mortgage debt was paid by the principal debtor, and that, for the reasons already referred to, there was no consideration for the execution of the mortgage.The only evidence introduced by the defendants relating to either subject was the notes and mortgage, and a deed showing the title to the mortgaged property to be in Mrs. Blake.The argument here is that, because the debt secured by the mortgage fell due in 1855, more than 20 years before the suit was commenced, a presumption had arisen that it was paid, and that, because the debt was barred as to the principal debtor, the sureties were necessarily discharged, notwithstanding the mortgage was given less than 20 years before the beginning of the suit.Assuming that the mortgage in suit was given upon a new and adequate consideration, it was nevertheless given solely as a collateral security for the payment of the notes therein described.These notes were not given for the debts of the mortgagors.They were the obligations of a third person, to which the mortgagewas collateral.When the principal debt was discharged, the security created by the mortgage was at an end.A collateral obligation cannot exist...