Halliburton v. Carter
| Decision Date | 28 February 1874 |
| Citation | 55 Mo. 435 |
| Parties | WESLEY HALLIBURTON, Appellant, v. CALVIN T. CARTER, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court.
Geo. W. Easley, for Respondent.
I. While it has seldom been decided under the Act of 1867, it has been repeatedly held, under the Act of 1841, that a discharge is a bar to any claim by a surety for money which he has been compelled to pay for the bankrupt, after his discharge, on a contract made prior to his bankruptcy. There is no fiduciary relation here, between principal and surety. The contract of the guardian to his ward is, that he will discharge his duties according to law-- the contract of the surety is--that if guardian does not do so, he will pay the damages. The contract between the parties to the action, ought to determine whether they are acting in a fiduciary character or not, and this contract does not place the parties in any confidential relation. (Jones vs. Knox, 46 Ala., 53.)
II. Nor can the doctrine of subrogation be invoked for the purpose of holding, that if the debt is not discharged as against the ward, it is not against the surety. The right of subrogation, is only the right to be substituted to all the rights of the creditor which are collateral to the main contract; that is, if the creditor has any security for his debt, or any preference in time or amount is given him, or he has a lien on any specific fund or property, or his debt is a bonded one, when there is a distinction between specialities and simple contracts, the surety on payment becomes substituted to that right. (
G. D. Burgess, for Appellant.
I. A discharge in bankruptcy does not relieve a guardian from his fiduciary obligations as such, and if his surety discharges them and obtains a judgment therefor, he may levy upon the property of the bankrupt, acquired after his discharge. (Carlin vs. Carlin, 8 Bush., 141.)
In the present case the surety is entitled to all the rights and equities of the ward of Carter, and if Carter could not be discharged as against his ward, he could not as against his surety.
On the 5th day of July, 1862, Collin T. Carter was duly appointed guardian of the person and curator of the estate of William W. C. Moore, a minor, and on the same day executed his bond, with the plaintiff and others as his sureties. He made his last annual statement or report of the estate of his ward, on the 8th day of January, 1861, shortly after which time, he became non-resident, and was for that reason removed from the guardianship and curatorship of said ward on the 7th day of January, 1867, by the Probate Court of Linn county, and another curator was appointed for the said minor. Carter never made any report of the condition of his trust, after the 8th day of January, 1861, and never accounted for the balance of $3,411.87, then shown to be in his hands belonging to his ward.
On the 26th day of January, 1867, suit was brought on the bond of Carter, and Halliburton was served with summons therein, on the 6th day of February, 1867, and judgment was rendered against Halliburton and Sandusky therein, on the 15th day of June, 1869, which was afterwards modified by this court (See State, & c., ex rel. Moore by guardian vs. Sandusky, 46 Mo., 377); and judgment rendered against two of the sureties for $4000, which the said Halliburton fully discharged on the 20th day of December, 1870.
On the 29th day of February, 1868, the defendant Carter, was on his own petition adjudged a bankrupt by the District Court of the United States, for the Western District of Missouri, and a discharge in bankruptcy was granted to him on the 8th day of December, 1868. The appellant now seeks in this action to recover from the defendant the money so paid by him on said judgment, and the respondent interposes his discharge in bankruptcy as a defense, and the only question presented by this record is, whether the respondent is protected by said discharge in bankruptcy from the payment of said demand. This question was raised by the evidence, and instructions given and refused, and was decided by the Circuit Court in favor of the defendant. It is manifest from this statement that the solution of the point in dispute, depends upon the...
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...96; Story on Agency (2 Ed.), secs. 339, 340. And when one person is held technically liable for an act committed by another. Halliburton v. Carter, 55 Mo. 435, 439; v. Guy, 127 F. 228; Navigation Co. v. Campania, etc., 144 N.Y. 663; Pfau v. Williamson, 63 Ill. 16; Bridge Co. v. Creem, 92 N.......
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