Dodd v. Winn

• Decision Date: 31 October 1858
• Citation: 27 Mo. 501
• Parties: DODD, Defendant in Error, v. WINN, Plaintiff in Error.
• Court: Missouri Supreme Court

27 Mo. 501

DODD, Defendant in Error,

v.WINN, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1858.

1. A release of one of several sureties by the creditors will discharge the others only so far as the released surety would be bound to make contribution if the other sureties, or any of them, should pay the entire debt.

2. A., the payee of a promissory note, obtained judgment thereon against B., one of five sureties; an execution under said judgment was levied on property belonging to B. sufficient to make the debt; A. ordered this execution to be returned unsatisfied; A. subsequently commenced suit against C., another of said sureties; held, that if all the sureties were solvent, A. could recover of C. only four-fifths of the debt; if all the other sureties were insolvent, he could recover only one-half the debt of C.

3. If one of several co-sureties is insolvent, the other co-sureties will be bound to make contribution as among themselves as if the insolvent surety had not been a surety at all. (See R. C. 1845, p. 1000, §8.)

Error to Ralls Circuit Court.

This was an action in favor of Levi Dodd, against Isham O. Winn, on a promissory note executed by David C. Glascock, M. McDonald, R. F. Richmond, Minor J. Winn, James G. Caldwell and said Isham O. Winn. The jury found the following special verdict: “We, the jury, find a special verdict as follows: On the 6th day of April, 1849, the plaintiff, Dodd, sued Minor J. Winn, on the same note now sued on, before the recorder of the city of Hannibal, the said Minor being one of the obligors in the note. Said Dodd recovered a judgment before said recorder against said Minor on the 6th day of April, 1850; and an execution was issued by said recorder on said judgment on the 11th day of April, 1850, and placed in the hands of the marshal of said city, and by him levied on a house in said city as the property of Minor J. Winn; that said marshal advertised said house for sale under said execution, but did not sell the house, being ordered by the plaintiff's counsel to tear down the advertisements and return the execution ‘no property found;’ which he did; and no execution has since issued on said judgment by the recorder. The jury further find as follows: That when the marshal levied on the house as aforesaid, a part of said house was owned by said Minor J. Winn, which part so owned by him was worth the sum of $137.50. Said house was standing on a piece of ground owned by Jeremiah Strode, who had leased it to said Minor J. Winn, with the privilege of taking off when he pleased any house he might erect thereon. Minor J. Winn had built the house in question on said lot, but had sold a part of it before the execution was levied, as before stated. The jury further find that David O. Glascock was the principal in the note sued on, and that Minor J. Winn and Isham O. Winn were each securities for said Glascock.”

The court rendered judgment on this verdict in favor of plaintiff for eighty dollars debt (four-fifths of the amount of the original note sued on), and assessed the damages for the detention thereof at seventy-six dollars.Lamb & Lakenan, for plaintiff in error.

I. The plaintiff having levied upon a sufficient amount of property with his execution against M. J. Winn to pay his entire debt, and having afterwards voluntarily released said property, he thereby released each of the other co-securities from the debt. (See 7 Mo. 497; 24 Mo. 333; 26 Mo. 243; 16 S. & R. 252; 10 Paige, 16.) The co-securities may all have been solvent at the time of the release of the property from execution, and all may now be insolvent. The jury should have been required to find as to the solvency or insolvency of the co-securities.

Porter & Harrison, for defendant in error.

I. A creditor may discharge one...