Post v. W.H. Bailey & Co.
| Decision Date | 20 December 1910 |
| Citation | 69 S.E. 910,68 W.Va. 434 |
| Parties | POST et al. v. W. H. BAILEY & CO. et al. |
| Court | West Virginia Supreme Court |
Submitted September 3, 1909.
Syllabus by the Court.
A creditor who holds a note secured both by personal indorsement and by a vendor's lien on land conveyed to the principal debtor may proceed at law on the note and in equity for the enforcement of his lien, at the same time until he obtains satisfaction in one forum or the other.
Equity will not enjoin the collection of an execution levied upon the property of the surety, on the sole ground that the creditor is proceeding in equity to enforce his lien on the lands of the principal debtor for the same debt.
Appeal from Circuit Court, Lewis County.
Suit by George L. Post and others against W. H. Bailey & Co. and others. Decree for defendants, and plaintiffs appeal. Reversed and remanded.
W. G Bennett and Edward A. Brannon, for appellants.
Brannon & Stathers, for appellees.
On the 5th of November, 1907, G. L. Post and W. L. Post conveyed to W. H. Bailey 256 acres of land in Lewis county in consideration of $6,000, evidenced by four notes payable as follows: $2,500 payable in five months and twenty-five days $1,200 in one year; $1,150 in two years; and $1,150 in three years--all of which were secured by a vendor's lien. W. E. Mick and W. B. Mick, partners as Mick & Son, were sureties on the $2,500 note. W. L. Post and G. L. Post recovered a judgment at law on the 13th day of July, 1908, against W. H. Bailey, the principal, and Mick & Son, the sureties, on said first note for $2,615.38 and $14.97 cost. On the 17th of March, 1909, execution was issued and levied upon the goods and chattels of Mick & Son. At the time of the levy of this execution, a suit in equity was pending in the circuit court of Lewis county brought by G. L. and W. L. Post against W. H. Bailey, Mick & Son, and others, for the purpose of enforcing the vendor's lien; but no decree of sale had been made. At the time of the filing of the bill, the first and second purchase-money notes only were due. Plaintiffs allege the recovery of a judgment on the first note, and also that there has been no satisfaction of it, and pray that the same may be declared a vendor's lien on the land, and that a sale of the land be had to satisfy the purchase-money notes then due, and that provision be made for the payment of the other notes as they fall due. Mick & Son filed a cross-bill and answer averring their suretyship for W. H. Bailey, and praying for an injunction to stay the collection of the execution until the vendor's lien could be enforced against the land of their principal. To this answer and cross-bill G. L. and W. L. Post filed an answer and special reply to which Mick & Son replied generally. On the 30th of May, 1909, the judge of the circuit court of Lewis county, in vacation, granted a temporary restraining order, inhibiting plaintiffs from collecting the execution until further order of the court, and provided in the order that such stay of execution should not invalidate or affect the lien acquired on Mick & Son's property by virtue of said execution and its levy. On the 7th of June, 1909, in special term, a motion to dissolve the injunction was overruled; and from this decree Post and Post have appealed.
No proof was taken, and the facts material to a decision of the case are admitted by the pleadings. The allegation in the cross-bill of Mick & Son that the land is of sufficient value to pay all the purchase-money notes is denied by the Posts in their answer and special replication. But in the present aspect of the case this fact is not material.
The record presents the following legal question, viz.: Will a court of equity, at the instance of a surety, stay the hand of the creditor and require him to first resort to his lien on the lands of the principal debtor before enforcing his remedy at law against the surety? Generally it will not. He must show some other ground for equitable interference than the simple fact that the creditor holds additional security from the principal for the same debt; such, for instance, that the creditor has released the particular security, or has dealt with it in such a way as to materially affect the rights of the surety. Because, on payment of the debt by the surety, he is entitled to be subrogated to the rights of the creditor; and, for the protection of such rights, equity regards the creditor as trustee for the surety as regards any collateral securities which he holds for the debt. 1 Brandt on Suretyship, § 496; Bank v. Parsons, 42 W.Va. 137, 24 S.E. 554.
But we are of opinion that Mick & Son have shown no grounds for equitable interference in the proceeding at law. The creditors had the right to satisfaction of their execution notwithstanding they were, at the same time, proceeding to enforce their lien in equity. Both forums were open to them, and they had a right to proceed in either, or both at once, until satisfaction which, of course, they are entitled to but once. A court of law regards the surety as a co-obligor with his principal, and, in the absence of any statutory restrictions, the creditor has the same rights against the surety that he has against the principal debtor. Warren...
To continue reading
Request your trial