Portland Trust Co. v. Havely

• Decision Date: 11 June 1900
• Citation: 61 P. 346,36 Or. 234
• Parties: PORTLAND TRUST CO. v. HAVELY et ux.
• Court: Oregon Supreme Court

61 P. 346

36 Or. 234

PORTLAND TRUST CO. v. HAVELY et ux.

Supreme Court of Oregon

June 11, 1900

Motion to prevent entry of decree against the personal representatives of appellants' deceased surety. Overruled.

For former opinion, see 59 P. 466.

Raleigh Stott and Ed Mendenhall, for appellants.

Wirt Minor, for respondent.

PER CURIAM.

This is a motion, the purpose of which is to prevent the entry of a decree against the personal representatives of H.W. Ross, who was a surety on the undertaking for appeal herein. The condition of the undertaking upon which the controversy hinges is as follows: "We, the said J.C. Havely and Anna Havely, the said defendants, as principals, and H.W. Ross, as surety, undertake that the appellants will pay all damages costs, and disbursements which may be awarded against them on the appeal, and that the said appellants will pay any portion of such decree remaining unsatisfied after the sale of the property upon which the lien is foreclosed." Ross died intestate February 18, 1899, and on March 6th Lucinda Ross his widow, and James C. Havely, were appointed administratrix and administrator of the estate. This is shown by the affidavit of the appellant J.C. Havely, and it is further shown that Ross had no interest in the suit, and received none of the consideration for any part or parcel of the relief awarded by the decree rendered by the circuit court in said cause. Based upon this showing, it is submitted that because the undertaking is joint in form, the death of the surety discharges his estate, and therefore no decree can properly be entered against his personal representatives upon the obligation. The common-law rule that an action at law cannot be maintained against the personal representatives of a joint obligor is well settled. Equity will interpose however, and give a right of suit, where the surviving obligor or obligors are insolvent, or the remedy at law has been exhausted without avail. Pom.Rem §§ 302-304. So it is with a surety on a joint obligation.

If he dies, there is no right of action left for the enforcement of the obligation against his estate. The cause of action dies with the person, and the only remedy upon the law side of the court is against the joint survivor or survivors. If however, there is fraud or mistake, equity will interfere to correct it, and, in proper cases, will give a remedy against the estate of the deceased joint debtor or obligor. So, also, where the deceased joint obligor has participated in the consideration forming the basis of the joint obligation or demand, or where there is any previous equity imposing a moral obligation upon such obligor, equity will give relief against the estate of the deceased obligor, because of the reasonable presumption which obtains, that the parties intended the obligation to be joint and several, but that through some iniquity or oversight it was made joint only. But it is said, "This presumption is never indulged in in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and consequently there is nothing on which to found an equity for the interposition of a court of chancery." Pickersgill v. Lahens, 15 Wall. 140, 144, 21 L.Ed. 119. See, also, Wood v. Fisk, 63 N.Y. 245; Getty v. Binsse, 49 N.Y. 385; U.S. v. Price, 9 How. *84, 13 L.Ed. 56; 1 Brandt, Sur. (2d Ed.)§ 139; Story, Eq.Jur. (13th Ed.) §§ 162-164. That this doctrine is well established, aside from any innovation the code practice of the several states may have impressed upon it, or any modifications thereof by statutory provisions, there can be no cavil. There is some strong authority against it, but it cannot be considered as overturning the doctrine, except in the special jurisdiction in which it has been announced. Susong v. Vaiden, 10 S.C. 247, 30 Am.Rep. 50. The rule grew up and has been established through the technicalities of common-law pleading, and upon the theory that a judgment could not be taken jointly against the estate of the deceased with the survivor upon the joint obligation. That this was purely technical, and without any inherent difficulty in the way of the entry of such a judgment, is now absolutely apparent, as exemplified under the equity and modern code practice. This is shown by the opinion of Mr. Justice McIver in the case last cited. But, notwithstanding these well-established rules of law, we are not impressed with their applicability to the present controversy. The statute provides that, "within ten days from the service of notice of the appeal, the appellant shall file with the clerk an undertaking, as hereinafter provided"; then, that "the undertaking of the appellant shall be given with one or more sureties, to the effect that appellant will pay all damages,...