McKenzie v. Wiley et ux.

• Decision Date: 20 February 1886
• Citation: 27 W.Va. 658
• Court: West Virginia Supreme Court
• Parties: McKenzie v. Wiley et ux.

27 W.Va. 658

McKenzie

v.Wiley et ux.

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1886.

Decided February 20, 1886.

1. A creditor having a judgment against his principal debtor causes an execution to be issued thereon, which conies to the hands of the sheriff and is levied by him on property of said principal debtor sufficient to satisfy said execution; after such levy the sheriff, either with or without directions from the creditor, restores said property to the debtor, who disposes of it without satisfying said execution; and on the bond, upon which said judg. ment was recovered, another person is surety, who did not consent to the restoration of the property to said debtor, H eld:

The surety is released from all liability to the creditor for said debt. (p. 660.)

2. The levy of an execution upon sufficient property to satisfy the same is prima facie a satisfaction of the execution as to the execution-debtor, (p. 662.)

Johnston $ Reynolds for plaintiffs in error.

R. ft. McClaugherty tor defendant in error.

Rnyder, Judge:

James R. Wiley executed his bond, which was also signed by Louisa J. his wife as his surety, for $163.00 payable to John A. McKenzie December 9, 1875. Upon said bond McKenzie obtained a judgment againet said Wiley and wife in an action at law brought by him in the county court of Mercer county. Subsequently, he brought this suit in the circuit court ot said county against Wiley and wife to subject the separate estate of the wife to the payment ot said debt. The bill avers that the husband is insolvent and that said judgment is a lien on the real estate of the wife.

It also avers that, if the court should hold said judgment invalid, as to the wife, the plaintiff may be remitted to his right to charge her separate estate by reason of the bond signed by her and that payment thereof may be decreed out of her said estate.

The wife answered the bill denying the validity of said judgment as to her. By way of defence, she avers, that on April 9, 1877, the plaintiff caused an execution to issue on said judgment which was placed in the hands of the sheriff of Mercer county, that at that time James R. Wiley, the principal debtor, had sufficient property to pay the debt, that in fact the sheriff levied the execution upon a bay mare of the value of $150.00 the property of the said James R., that said execution was afterwards by the directions of the plaintiff returned to the clerk's office by the sheriff and said mare returned to said flames R. Wiley without the consent of respondent; that before said execution was returned and said mare restored, the plaintiff and said James R. entered into a written contract without the consent of respondent by which the said James R. sold to the plaintiff a colt for which the plaintiff gave him credit for $40.00 on said execution and bound himself, that the balance of the execution should not be enforced until the final determination ot the suit of Wiley v. Dare then pending in the circuit court of Mercer county, and that said suit is still pending and undetermined, whereby she claims that she is released from liability for said debt, She exhibits with her answer, the execution and return thereon and also the written contract referred to in her answer.

The execution is dated April 9, 1877, and made returnable to July rules. The return thereon duly signed by the sheriff it as follows:

"June 1, 1877. Levied on one bay mare, property of James R. Wiley to satisfy the within Fi Fa."

" Returned by written directions of the plaintiff, June 1, 1877."

The written contract is in substance and effect as stated in the answer and is signed by the plaintiff and dated May 30, 1877.

The only witness examined in the cause was the defend- ant James R. Wiley. He says: "The mare was worth $150.00 at the time. I kept the mare then for two years and finally traded her off." In regard to his wile's knowledge of the transactions between himself and the plaintiff, he says: "She had nothing to do with it. She was at home and John A. McKenzie and myself were here, and she gave no consent in any way and knew nothing about it." He also states, that the sheriff called upon him to know what he was going to do about the levy upon the mare, that he showed him the contract between him and McKenzie and he looked at it and said it was all right.

By a decree, entered November 24, 1884, the court directed the sheriff to seize and sell sufficient personal property of the defendant, Louisa J. Wiley, to pay the plaintiff's debt then amounting to $203.21 and the costs; and from this decree said defendant appealed.

Considerable argument has been expended by counsel in their briefs filed in this Court as to the effect ot the written contract between the plaintiff and James R. Wiley referred to in the answer ot the appellant. In my view of this cause, it is unnecessary to consider said contract or the effect ot it.

It is certain that the judgment at law recovered by the plaintiff on the bond was invalid and void as to the appellant and consequently did not operate as a lien upen her real estate. Stockton v. Farley, 10 W. Va. 171; Radford v. Garioile, 13 W. Va. 572.

The important enquiry in this cause is, whether the conduct of the plaintiff, McKenzie, in reference to the execution issued upon his judgment discharged the appellant frott) liability in whole or in part?

It may be regarded as the settled law of Virginia and this State, that a surety is entitled to be relieved from his liability to pay the debt of his principal, either in toto or pro fanto, as the case may be, if the creditor, without the consent of the surety, make a new contract with the principal, founded on a valid consideration, to postpone the day ot payment ot the debt for a time, however short, beyond the day on which it was to be paid by the terms of the contract on which the surety was liable; or it the creditor, without the consent ot the surety,...