Knight v. Als

• Decision Date: 10 November 1888
• Citation: 22 W.Va. 422
• Court: West Virginia Supreme Court
• Parties: Knight and Martin v. Charter ct als.

22 W.Va. 422

Knight and Martin

v.Charter ct als.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1888

Decided November 10, 1888

1. Sureties seeking to be relieved in equity from the obligation of their contract, are not entitled to be absolved from such liability by the want of diligence on the part of the creditor in prosecuting his demand against the principal debtor. (p. 427.)

2. A creditor is not bound to active diligence, in prosecuting his demand, and if he remains merely passive, his rights against the surety are not thereby impaired. (p. 427.)

8. If a creditor has obtained judgment against the principal debtor, sued out execution thereon, and placed the same in the hands of the proper officer to be executed, and before the return day thereof, and before the scane was levied, he directs such officer not to levy the execution, and to return the same without being levied, and the same is accordingly so returned, such indulgence does not release the sureties of such judgment-debtor. (p. 427.)

4. A mere countermand of an execution by the creditor, after it goes into the hands of the sheriff, but before it is levied, does not release the Surety of the execution-debtor.

5. Unless the creditor without the consent of the surety make a valid and binding contract for a good consideration to give indulgence to the principal debtor, so as to tie up his hands from proceeding to enforce his demand against said principal debtor, at any moment, he may be required by the surety to do so, such indulgence will not release the surety from the obligation of his contract. (p. 429.)

6. In a bill filed by sureties seeking to be relieved from the obligation of their contract on the ground that such indulgence has been given to the principal debtor by the creditor, it must show on its face the existence of every fact necessary to entitle them to such relief; and if it fail to show these facts, and also that such indulgence was granted without or against their consent, the bill is fatally defective, and a demurrer thereto ought to be sustained.

7. A case finally heard upon its merits in the court below, upon a bill fatally defective dismissed in the Court of Appeals, because the plaintiffs wholly failed to show themselves entitled to any part of the relief prayed for. (p. 433.)

Woods, Judge, furnishes the following' statement of the case:

T. K. Knight and Luther Martin filed their bill in the circuit court of Doddridge county against L. K. Charter, George H. Towles, J. Emory Towles, and the sheriff of said county, alleging that plaintiffs were the sureties of George II. and J. E. Towles in a note for two hundred dollars made to Charter for money lent by him to them; that soon after the note became due, George II. and J. E. Towles confessed judgment in the clerk's office of the circuit court of said county for two hundred dollars with interest and costs in favor of said Charter; that on the same day an execution issued thereon, which was placed in the sheriff's hands to be executed, returnable to July rules, 1874; that George II. and J. E. Towles, at the time the execution issued and went into the sheriffs hands, had plenty of personal property to pay the same, and that before the return day of the execution, Charter directed the sheriff, to return the execution without levying the same, which in pursuance of such directions was returned, without having been levied, and that George H. and J. E. Towles soon thereafter became insolvent, having no property, real or personal, out of which payment of the judgment could be had.

The bill further alleges that on June 23, 1874, while the execution was in the hands of the sheriff, and before the return day thereof, Charter "entered into a contract or agreement, whereby in consideration of a greater sum than the legal interest on the judgment from the 27th day of April, 1874, to the 26th day of December, 1874, to-wit, the sum of thirty-three dollars and twenty-five cents, then paid to him, Charter suspended his right to proceed to enforce payment of the judgment from the 23d of June, 1874, to the 26th of December, 1874," and the plaintiffs claim that Charter by his action directing the execution to be so returned, and by suspending his right to proceed to collect the amount of the judgment, they are in equity released from their liability as such sureties.

They further allege, that Charter afterwards on May 20, 1880, recovered a judgment on the note against them, as such sureties, for two hundred and fourteen dollars and twelve cents with interest from that date and costs, and sued out execution thereon against them and placed the same in the hands of the sheriff of said county who is harrassing them for payment; and they pray that Charter and all others, may be perpetually enjoined from collecting said judgment against them as such sureties, and for general relief. Upon this bill the judge in vacation awarded the preliminary injunction as prayed for.

To this bill the defendant, Charter, appeared in court and demurred, which demurrer was overruled, the bill wastaken for confessed as to all the defendants except Charter, who at the same time answered fully, all the allegations of the bill. The answer admits the loan of the money, the execution of the note, the confession of the judgment, the issuing of execution, and that the same was placed in the hands of the sheriff of said county, returnable to July rules 1874, but he denies that when the execution was placed in the hands of the sheriff, George IT. and J. E. Towles had abundant personal property subject to levy under said execution; he denies that he directed the sheriff to return the execution without levying the same, or that he gave him any directions whatever in regard to it, and avers that the same was not returned until a month after the return day thereof.

He denies explicitly each and every allegation that for the consideration named therein, or for any other consideration he on the 23d day of June, 1874, or at any other time, entered into any contract or agreement, of any kind whatever, whereby, he suspended, his right to proceed to enforce the payment of his judgment from June 23, 1874, to December 26, 1874, or for any other time whatever, or that for any indulgence granted to Geogre H. and J. E. Towles, any consideration, was promised, paid or received; and avers that all indulgence given, was given at the request of said Knight, and that he did not suspend for any definite period of time his right to enforce payment of his judgment; that the sum of twenty-three dollars and thirty-five cents and nine dollars and ninety cents received by him were so received as credit, on the judgment, but denies that any part thereof "was agreed, or understood to be applied, or was applied to pay interest in excess of lawful interest on the judgment. The answer further alleges, that the plaintiff, Knight, who at that time was, and who still is the clerk of the circuit court of said county, procured Towles to confess the judgment, and at the same time induced them to give sundry claims due to them to a constable or justice for collection, with instructions as fast as any moneys were collected thereon to pay the same over to said Charter upon the judgment, who then agreed with Knight and the Towles, to be indulgent to see if they could not in this way raise the money to pay off the judgment, He also admits the recovery of the said judgment against plaintiffs for two hundred and fourteen dollars and twelve cents, and that he is endeavoring to collect his debt thereon as he lawfully may do, and asks that the injunction be dissolved and the bill dismissed. To this answer a general replication was filed, depositions of said Geo. H. and J. Emory Towles, T. K. Knight and of defendant, Charter, were taken, and these with copies of said note, judgments, execution and sheriff's return thereon, were all the proofs in the cause, and the court on the hearing thereof by its decree perpetually enjoined the defendant, Charter, from collecting from said sureties his judgment against them. From this decree said Charter has obtained an appeal to, and a supersedeas to this Court.

Cole & Miller for appellant. Stuart and Blair for appellees.

Woods, Judge:

Two questions are presented for the consideration of this Court, by the transcript of the record of the proceedings in the circuit court, either of which if decided adversely to the pretentions of the plaintiffs, is fatal to the final decree rendered in this cause. We will consider them in the order in which they arise.

First, are the allegations of the plaintiffs' bill, if true as stated therein, sufficient to entitle the plaintiffs to the whole or any part of the relief sought? The bill seeks to enjoin the defendant, Charter, from collecting from the plaintiffs, as the sureties of George H. Towles and J. Emory Towles, the amount of his judgment against them for two hundred and fourteen dollars and twelve cents with interest from May 20, 1880, and seventeen dollars and five cents costs, on two separate grounds, viz, that having on May 5, 1874, obtained judgment and sued out execution thereon, and placed the same in the sheriff's hands, against the principal debtors, then solvent, he afterwards, before the return day of the execution, directed the sheriff not to levy it but return the same without levying it, which he did, and that the principal debtors soon after became insolvent and unable to pay the judgment; and secondly, that Charter on June 25, 1874, while the execution was in the hands of the sheriff, entered into a contract or agreement with George II. and J. E. Towles, whereby in consideration of a greater sum than the legal interest on the judgment from the 27th day of April, 1874, to the 26th day of December, 1874, to-wit of the sum of thirty-three dollars and twentyfive cents then paid to him he suspended his right to proceed to enforce payment of the judgment from the 23d of June, 1874...