Routon's Adm'rs v. Lacy

• Decision Date: 31 January 1853
• Citation: 17 Mo. 399
• Parties: ROUTON'S ADMINISTRATORS, Plaintiffs in Error, v. LACY, Defendant in Error.
• Court: Missouri Supreme Court

17 Mo. 399

ROUTON'S ADMINISTRATORS, Plaintiffs in Error,

v.LACY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

1. Under the first section of the act concerning “securities,” (R. C. 1845) a notice in which the surety states that he “will no longer stand security for the principal debtor unless suit is commenced and prosecuted according to the law,” was held sufficient, although the note was not described or referred to, the creditor not showing that he was actually mislead.

2. Where there were two joint sureties, one of whom gave notice, but the other did not, it was held, that the surety who gave no notice was released to the extent to one half of the debt, and no more.

Error to Moniteau Circuit Court.

In April, 1843, T. A. Todd, as principal, and Wm. Hall and W. A. Lacy, as sureties, executed a note to John Routon for one hundred dollars, payable two days after date. Wm. Hall died in the year 1845, and his administrators, on the 21st November, 1845, served on John Routon, the creditor, a notice, of which the following is a copy: “Nov. 21st, 1845. Mr. John Routon: Sir--You are hereby notified, that the estate of William Hall, deceased, will no longer stand security for Tillman A. Todd, unless suit is commenced and prosecuted according to law. Given under our hands the day above written. Alexander. F. C. Hall, William W. Hall, administrators of the estate of William Hall, deceased.”

John Routon, the creditor, died in October, 1846, and the plaintiffs, Miller and Routon, were appointed his administrators. John Routon, the creditor, never brought suit, as he was required by the notice of Hall's administrators. Todd, the principal, died, and his estate proved insolvent.

In a suit on this note against Lacy, the co-security of Hall, the court below decided, that the notice given to Routon was sufficient under the statute, and that Lacy might avail himself of that notice, although he did not join in it, as a defense to the action. Exceptions were taken to these rulings of the court, and the cause was brought here after a judgment for Lacy, the surety.

Edwards and Parsons, for plaintiffs in error. 1. The notice was not such an one as is required by the statute. Cape v. Smith, 8 Serg. & R. 112. Erie Bank v. Gibson, 1 Watts, 143 Shehan v. Hampton, 8 Ala. Rep. 945. McBrown v. Governor, 6 Porter's Rep. 2. Even if sufficient, the defendant cannot avail himself of it. 3 Dana, 160. 3. In any event, the defendant is liable for his proportion of the debt. 1 Story's Eq. 507, 508, and note 3.

Hayden, for defendant in error. 1. The notice was sufficient. 2. By the failure to sue, Hall's estate was discharged, and consequently the defendant, on the principle that a discharge of one joint debtor is a discharge of both. There is no difference in this respect between a discharge by a technical release and a discharge by neglect or omission to sue. 1 Story's Eq. § 324-5-6.2 Summer's Rep. 434. 1 Peters' Rep. 16. 6 Porter's Rep. 42. 3. At all events, the defendant is discharged from one half of the debt, because the creditor has put it out of his power to enforce contribution against his co-security. 4. The case cited from 6 Porter, 32, is in point for the defendant instead of the plaintiff in error.

SCOTT, Judge, delivered the opinion of the court.

1. A mere delay in calling on the principal will not discharge the surety, unless it is accompanied with a binding contract for that purpose. At common law, a mere request by the surety to bring suit, was not binding on the principal, and his neglect to comply with such request did not release the security. The surety may pay the debt when it becomes due, or he may require the creditor, in a court of equity, to enforce his demands against the principal debtor. On paying the debt, he stands in the place of the creditor, and is entitled to be subrogated to his rights. If by a valid contract with his debtor, a creditor had put it out of the power of the surety to make this remedy available, the surety was discharged.

We regard our act concerning sureties as remedial. The notice was sufficient. In a matter of this kind to require a notice...