Miller v. White

• Decision Date: 12 July 1886
• Citation: Miller v. White, 25 S. C. 235 (S.C. 1886)
• Parties: MILLER v. WHITE.
• Court: South Carolina Supreme Court

25 S.C. 235

MILLER v. WHITE.

Supreme Court of South Carolina.

July 12, 1886

1.Where a sealed note signed by two obligors was in form following: " On or before November 1, 1883, we or either of us promise to pay D. E. Miller, or order (for rent of farm), two hundred and fourteen dollars" -the note was an obligation to pay in money, and the obligee might sue the surety thereon without pursuing the principal debtor.

2.If the note was a rent note, then it was the lease of both obligors, and neither of them was a surety.

3.Notice by the surety to the obligee to seize the principal debtor's crop did not release the surety as (1) the obligee was not bound to take anything but money in payment of the note; (2) it did not appear that the crop was sufficient to discharge the debt; and (3) the landlord's right to seize a crop is not compulsory, and in this case the facts would not have authorized a warrant of seizure to issue.

Before FRASER, J., Darlington, October, 1885.

The facts of this case are fully stated in the opinion.The judge made the charge and refused the requests quoted in the exceptions.

Messrs. Boyd, Nettles & Brunson , for appellant.

Mr. J. P. McNeill , contra.

OPINION

MR JUSTICE MCGOWAN.

This was an action on a note as follows: " On or by the first day of November, 1883, we or either of us promise to pay D. E. Miller or order (for rent of Mt. Hope Cemetery farm, for the year ending December 30th, 1883), two hundred and fourteen dollars, without interest until maturity.Witness our hands and seals at Florence, S. C. (Signed)J. M. White[l. s.], Thomas Ellis [[[[[l. s.]."Both the signers were sued.White made no defence, but Ellis answered, claiming that he had no interest in the land leased to White; that he was merely his surety on the note, and was discharged from liability by the conduct of the plaintiff creditor; that White made a crop on the premises, and that when the note became due he(Ellis) made demand on plaintiff that he should at once enforce his statutory lien on the crop and thereby obtain payment of the note, but that plaintiff refused to enforce his lien; that the crop was valuable and the plaintiff could have obtained payment, and not having done so, that he(Ellis) was discharged and no longer liable.

The plaintiff had a verdict for the amount of the note; and Ellis, having failed to obtain a new trial appeals to this court upon the following exceptions: " I.Because his honor erred in charging the jury that ‘ a demand made by the surety to a tenant, on the landlord, to enforce the statutory lien will not release the surety unless it is accompanied with or the landlord has information that the tenant is about to dispose of his crop or in some other way defeat the lien.Without this the landlord is not in a position to enforce the statutory lien by the usual warrant from the clerk.’II.Because his honor erred in refusing the request to charge that ‘ if Ellis was the surety of White and this was known to Miller, and if Miller was required by Ellis to enforce his statutory lien for rent on the crop upon the leased land, and refused so to do, and this omission resulted in injury to Ellis, then Ellis is discharged from his liability on the note.’III.Because his honor erred in refusing the request to charge that ‘ if White told Miller to take any part of his crop in payment, and Miller declined to take it, Ellis is discharged pro tanto the value of the crop he was so told to take and refused.’IV.Because his honor erred in refusing a new trial on the grounds above stated," & c.

The instrument sued on was signed by both of the defendants, and its terms are, " We, or either of us," and must be regarded as the...