Perry v. Patterson

• Decision Date: 31 December 1844
• Citation: 24 Tenn. 133
• Parties: PERRY v. PATTERSON.
• Court: Tennessee Supreme Court

24 Tenn. 133

PERRY

v.PATTERSON.

Supreme Court of Tennessee.

December, 1844.

The following is the decree entered in this case. which exhibits the grounds on which the chancellor acted:

“This cause coming on for trial at the March term, 1844, of the chancery court at Columbia, before the Hon. Terry H. Cahal, on bill, answer, replication, and proof in the cause, and it appearing to the court that on the -- day of ____ 184-, Robert Patterson obtained, in the circuit court of Maury county, two judgments against William Perry, Jr., for something above the amount of $1,200; that said Patterson, by his attorney, agreed to give said Perry an extension of twelve months on said debt, by taking a new note, with Simpson and Frank Perry as surety. It further appearing to the court that said Simpson Perry did agree to be the surety of Wm. Perry, Jr., on a note of $1,232.34, due 21st March, 1841, in conjunction with Frank Perry, in order to enable William Perry, Jr., to avail himself of the extension proposed by said Patterson, and did sign said note as said William Perry, Jr.'s surety; which said note was afterwards delivered to said Patterson's attorney, and accepted by him in satisfaction and payment of said two judgments, whereby Patterson waived the right and benefit of recourse on the lot of goods and negroes of said William Perry, Jr., which were claimed by Simpson and Frank, under an assignment from William Perry, Jr., for their benefit. The court being further satisfied that said Simpson Perry, at the time he signed said note, was assured that Frank Perry would join and become co-surety on said note, and that said Simpson signed it under an agreement that he was to be responsible with Frank Perry as his co-surety. The court being further satisfied that William Perry, Jr., and the complainant derived the same benefit from the note, with the signature of Simpson's name as surety, which they would have done had Frank also signed it by said Patterson's attorney accepting it in payment of said judgments. And the court being of opinion that, under these circumstances, complainant, as surety of William Perry, Jr., is justly bound to pay one-half of said original note, with the interest thereon, to defendant Robert, and that said Patterson has a right in law to recover the same; but that complainant ought not to be bound to pay more than one-half of said note, with the interest thereon. It is, therefore, by the court ordered, adjudged, and decreed that defendant be permitted to prosecute his suit at law to judgment; that, after said judgment is recovered, one-half of the amount be perpetually enjoined as to said Simpson Perry, and that Patterson be permitted and allowed to recover the other half of said judgment, with the interest thereon, and that execution issue therefor. It is further ordered, adjudged, and decreed by the court that complainant be enjoined from pleading non est factum, or that the instrument was delivered as an escrow, at law, the defence against said note properly arising under those pleas at law having been tried and settled in this court. It is further ordered, adjudged, and decreed by the court that each party pay one-half the costs of this suit, and that execution issue for the same as at law.”

From this decree the complainant appealed.

Nicholson, for complainant.

W. H. Humphreys, for defendant.

Turley, J., delivered the opinion of the court.

Robert Patterson recovered judgments at the January term, 1840, of the circuit court of Maury, against Wm. Perry, for the sum of between $1,100 and $1,200. Wm. Perry being in failing circumstances, a proposition was made to him by Patterson, through his attorney, that if he would give a note for the amount of said judgment, with two undoubted solvent sureties, he would give him twelve months' longer time in which to pay the debts. This proposition was...