Brown's Adm'r v. Johnson

• Decision Date: 04 February 1857
• Citation: 54 Va. 644
• Parties: BROWN'S adm'r v. JOHNSON. ISBELL'S ex'or v. JOHNSON.
• Court: Virginia Supreme Court

54 Va. 644

BROWN'S adm'r v. JOHNSON.

ISBELL'S ex'or v. JOHNSON.

Supreme Court of Appeals of Virginia.

February 4, 1857

1. In an action on a joint bond against the personal representative of a deceased obligor, a surviving obligor is an incompetent witness for the defendant.

2. Where a witness is offered as competent on the ground that though interested in favor of the party offering him, his interest is equal or greater the other way, this last interest must be as direct and immediate as the former.

3. In an action against one of two obligors in a bond, the interest of the other arising from his liability to the defendant for contribution is more direct and immediate than his liability as obligor in the bonds to the obligee; and he is therefore an incompetent witness for the defendant.

4. If the liability of one obligor in a bond is defeated on a ground not personal to himself, (as infancy, bankruptcy or death,) the liability of all the obligors is at an end; and therefore one obligor is an incompetent witness for his co-obligor in an action on the bond.

5. The statute, 1 Rev. Code, ch. 98, § 3, p. 359, Code, ch. 144, § 13, p. 582, in relation to joint obligations, though it gives an action against the personal representative of a deceased joint obligor, does not affect the principle that the defeat of the remedy against one joint obligor upon a ground not personal to himself, defeats it as to all the obligors.^[a1]

6. There are two actions pending by the same plaintiff against obligors in the same bond; a deposition taken by the defendant in one of the cases, can under no circumstances, be competent evidence for the defendant in the other.

7. A covenant by the obligee in a bond with one of three joint obligors, that if after judgment against all the parties the money is not paid by the other two, he will relieve him from the payment of it, is not a release, and will not bar an action on the bond against all the obligors.

These were two actions of debt in the Circuit court of Appomattox county, the first brought in August 1853 by John Johnson assignee of John H. Johnson, against the administrator of James Brown deceased; and the second by the same plaintiff against the executor of William Isbell deceased. Both actions were founded on the same bond, which was executed to John H Johnson by William Isbell as principal, and James Brown and William J. Dunn as his sureties. This bond bore date the 10th day of April 1844, and bound the obligors jointly, to pay to John H. Johnson the sum of eight hundred and eighty-seven dollars and fifty cents, with interest, on or before the 1st of April 1847. The defendants each pleaded usury; and a release by John H. Johnson, before the assignment, to their co-obligor William J. Dunn; whereby they insisted they were released.

Upon the trial of the first named case, after the plaintiff had introduced the bond declared on, the defendant offered to introduce in evidence the deposition of Dunn, who was proved to be dead. The plaintiff objected to the evidence on the ground that Dunn was interested; and to obviate that objection the defendant offered in evidence a writing under the hands and seals of Dunn and Johnson, whereby, upon a consideration therein stated, Johnson covenants with Dunn that in the event that the bond declared on shall not be paid by the said Isbell and Brown after judgment obtained against all parties, he, the said John H. Johnson, will relieve him from the payment of the same and every cent thereof. It was admitted that this paper was genuine and in full force; and that Isbell at the time of taking the deposition was dead leaving an estate ample to pay all his debts and liabilities including this.

But the court sustained the objection and excluded the deposition, on the ground that the said Dunn by reason of his interest was incompetent to testify: And the defendant excepted.

On the trial of the second case the same deposition was offered in evidence under the same circumstances; the only difference in the cases being that the deposition was regularly taken in the first case, when the plaintiff was present and cross-examined the witness; and it was offered as evidence in the second case though only taken in the first. It was again excluded by the court; and the defendant excepted.

There was a verdict and judgment in both cases for the plaintiff and the defendants each applied to this court for a supersedeas, which was allowed. They came on here to be heard together.

The Attorney General, for the appellants.

Garland, for the appellees.

LEE, J.

The question in these cases is whether in an action under our statute against the representative of one who was jointly bound in an obligation with another who survives, and upon an issue to the merits going to the validity of the obligation and the right of the plaintiff to recover upon it, the surviving obligor is a competent witness for the defendant.

Isbell was the principal debtor and Brown, and Dunn whose testimony was offered, were jointly bound with him as sureties. In the case first named, then, that of Johnson v. Brown's adm'r, the witness Dunn has a direct and immediate interest to defeat the recovery against Brown's estate, because by so doing he prevents any demand against himself on the part of Brown's estate for contribution of his share of the amount recovered: and if this interest be not released or in some way overcome, he would upon general principles be clearly incompetent. Moreover, if he were in any way relieved from the debt and interest, still he would be liable to contribution for the costs, because the statute gives contribution for the party's share of the whole amount for which the judgment or decree is rendered, which of course includes the costs. Code of Va. ch. 146, § 8, p. 588. And such a liability would render the witness incompetent. Hall v. Cecil, 6 Bing. R. 181; Jones v. Raine, 4 Rand. 386. That the statute gives the remedy only in case the principal be insolvent will not vary the case. By procuring a verdict and judgment for the cosurety, the witness puts an end to all question upon this subject, and that verdict and judgment will be evidence for or against him in any proceeding of the cosurety for contribution.

But it is said the interest of the witness is greater against the cosurety than in his favor because by procuring a verdict and judgment for him, he makes himself liable for the whole amount of the joint obligation, whilst the effect of a verdict and judgment against him would be to subject him to contribution for a moiety, only. This might be so, if the liability in the former case were as immediate and direct as that in the latter. But it is not so. The liability in the former case arises out of the party's executing the joint obligation and the relation in which he stands to the obligee, whereas in the latter case the liability to contribution grows out of the judgment or decree against the cosurety itself by the terms of the statute. And to counterbalance or outweigh an interest in the witness in one way by an equal or greater in the opposite, the latter must be also direct and immediate. For where the one is direct and the other contingent, the former must prevail. Goodacre v. Breame, Peake's N. P. Cases 232; Hall v. Cecil, 6 Bing. 181, (19 Eng. C. L. R. 47.) Now the interest depending upon the liability of the witness to be sued for the whole, if the action failed as to his cosurety is an uncertain and contingent interest and not immediate and direct. As said by the judges in Slegg v. Phillips, 4 Adolph. & El. 852, (31 Eng. C. L. R. 203,) the recovery might depend on many contingencies; and the witness comes to prove the note a nullity, a defense which might be equally available for himself; and thus as said by Lord Denman, C. J. " it is not in the defendant's mouth to say" that the witness would be benefited by the recovery against the defendant.

Under the English practice for want of a statute making the representative of one who was jointly bound with another liable to an action at law, the precise question in these cases could not occur, as the remedy at law lies only against the survivor. But a very similar question has occurred...