Sayre et al. v. King et al.

• Decision Date: 23 December 1880
• Court: West Virginia Supreme Court
• Parties: Sayre et al. v. King et al.

17 W.Va. 562

Sayre et al.

v.King et al.

Supreme Court of Appeals of West Virginia.

Decided December 23, 1880.

(Moore, Judge, Absent.)

1. A new trial ought not to be awarded by a court of equity because of after discovered evidence, unless such evidence ought to produce a different verdict, and unless it was prevented from being introduced on the trial at law by fraud or by ignorance unmixed with negligence. And therefore a surety cannot rely on his ignorance of a substantial defence known to his principal, unless he alleges in in his bill and proves, that he took proper steps to ascertain from his principal or otherwise the true state of the case, or that he was prevented from so doing by circumstances not under his control.

2. If an obligee in a bond executed by a principal and sureties without the consent of the sureties make a parol contract, whereby he gives further time to the principal, the sureties are thereby discharged in equity, but not at law.

3. The taking of a bill or negotiable note for an existing debt is prima facie conditional payment thereof; but it may be shown by direct or circumstantial evidence, that the bill or negotiable note was taken either as an absolute payment or as collateral security merely; this however belongs to a branch of commercial law rather than to the common law.

4. If instead of commercial paper another chose in action, such as an unnegotiable note, a bond, an obligation to deliver goods at a future time, a mortgage or a deed of trust be given by the debtor to his creditor, such chose in action is prima facie not conditional payment but collateral security, though it too may be proven by either direct or circumstantial evidence to have been intended by the parties to be an absolute or conditional payment.

5. If a chose in action was received as absolute payment, it discharges the sureties in the original debt, and if received as conditional-payment, and it is payable at a future time, it suspends during this time suit on the original debt, and therefore discharges the sureties of said debt, if taken without their consent. But if such chose in action or a deed of trust or mortgage is received as collateral security, though payable or forecloseable at a future time, it does not suspend the right of action on the original debt, and therefore does not discharge the sureties from liability, though taken without their consent, unless they prove by direct or circumstantial evidence, that there was an agreement to suspend the right or suit on the original debt in consideration of such collateral security.

Appeal from an order of the circuit court of the county of Jackson rendered on the 13th day of January, 1879, in a cause in said court then pending, wherein William H. Sayre and others were plaintiffs, and George S. M. King and others were defendants, allowed upon the petition of said plaintiffs.

Hon. Joseph Smith, judge of the seventh judicial circuit, made the order appealed from.

Green, Pesident, furnishes the following statement of the case:

George S. M. King, then sheriff of Jackson county, West Virginia, appointed John M. Burdett his deputy, who on January 27, 1868, executed his bond payable to George S. M. King, sheriff, in the penalty of $8,000.00 with the plaintiffs W. H. Sayre, Abel Sayre, Julius Campbell and one D. B. Sayre as his sureties, which bond was conditioned for the faithful and prompt discharge on the part of John M. Burdett, the deputysheriff, of all the duties of the office "of sheriff in the township of Mill Creek and any other business undertaken or to be done by him, and in all matters done or undertaken to be done to save said King from loss. On September 25, 1871, King broughfa suit on this bond in the circuit court of Jackson, and obtained on July 21, 1875, a judgment against all the obligors for $1,067.75 with interest thereon from July 21, 1875, till paid and costs. A writ of error and supersedeas to this judgment was obtained from this court. It was affirmed April 27, 1878. The proceedings in this case sufficiently appear in the report of the opinion of this court in that case. See King v. Burdett et al., 12 W. Va. 688. An execution was then sued out and levied by W. D. Som-erviile, deputy for D. S. Stevenson, who was a sheriff, on the property of W. D. Sayre, one of the defendants in said common law suit. Thereupon the sureties in this bond, other than D. B Sayre, filed their bill and obtained from the judge of the circuit court of Jackson county an injunction against said King and said sheriff and his deputy, prohibiting them from enforcing the writ of fieri facias on said judgment.

The bill, on which this injunction was awarded, sets forth the above facts and alleges, that a large portion of the services rendered for King, the sheriff, by the deputysheriff, Burdett, the principal in said bond, were rendered not in the Mill Creek township but in the adjoining township of Washington, and this was done without the knowledge or consent of the plaintiffs, and most of the liabilities, for which this judgment was rendered, were for the defaults of the deputy-sheriff in the performance of these duties in the township of Washington, "and that these facts were unknown to the plaintiffs until some time after the rendition of said judgment." This portion of this bill was demurred to.

The bill further alleges, that on the 18th of June, 1872, J. M. Burdett by a certain deed entered into by said Burdett of the one part and John H. Riley, trustee, on the other part with advice and procurement of said King, conveyed all his property to said Riley, as trustee, upon certain trust for the benefit of said King, and the said King by said Riley, his attorney and trustee, executed said deed, and also the said Riley at the instance of said King, as such trustee, executed this deed; and said King did by this deed covenant with said Bur-dett, that he, the said King, would not at any time there- after commence or prosecute any action or other proceeding against said Burdett for or by reason of any debt then due and owing to him, said King: and said King did further covenant with said Burdett, that in consideration of the execution of said deed he would not at any time thereafter prosecute any action or other proceeding against the securities of J. M. Burdett as deputysheriff, but that he would accept said trust-deed in full discharge and acquittance of said securities from all liability to him on account of their said suretyship. A copy of this deed of trust is filed with the bill as a part thereof; and it shows, that these statements of the bill were not true.

The deed is dated June 18, 1872; and by it John M. Burdett conveyed to John H. Riley a tract of two hundred acres of land, describing it, in trust to secure the payment of $1,908.03 evidenced by single bill executed by said Burdett to said King due October 1, 1872, and bearing interest from the date of the deed. The deed then concludes: "And it is understood and agreed, that in case the said John M. Burdett shall fail to pay the amount due by said note or any part thereof on the 1st day of October, 1872, that the said John H. Riley, trustee, shall expose the land hereby conveyed for sale in front of the court-house of Jackson county, West Virginia, for cash in hand on the day of sale, having first advertised the time, terms and place of sale by hand-bills posted at the front door of the court-house ten days before the day of sale." This deed was only signed by Burdett and Riley, the trustee; and there is in it no covenant of any kind.

Having made these false statements of the character of this deed the plaintiffs in their bill further say, that King by said deed of trust gave time to said Burdett from the 18th day of June to the first of October, 1872, and for some time thereafter in respect to the payment of said debt on his land as deputy-sheriff, all of which was done without the knowledge or consent of the plain- tiffs, his sureties in said bond; and they claim that they were thereby discharged from all liability as such sureties. The bill makes King, the sheriff of Jackson county, and his deputy, who levied the execution on this judgment, and Hugh Sayre and Isaac Sayre, heirs at law of D. B. Sayre, deceased, their co-surety, the defendants, and prays for the injunction, which was awarded, and for general relief.

King filed his answer to this bill, in which he sets out at some length the proceedings in the common law suit referred to, as they appear in the report of the case in 12 W. Va. page 688 to 698. He denies all the allegations in the bill in reference to the character of this deed of trust, which, we have stated, were shown to be false by the deed itself, and he denies, that he gave time to said Burdett in respect to the debt represented by said deputysheriff's bond, in which the plaintiffs were sureties. He alleges, that this deed of trust was merely a collateral security, which operated beneficially to the plaintiff. And that its being taken did not affect the remedy on said deputy-sheriff's bond, on which suit was then pending.

John M. Burdett on behalf of the plaintiffs deposed substantially, that when he gave this deed of trust, he felt himself in trouble by having gone surety for one Keeney, and he therefore called on King, had a settlement not very accurate with him of how much he owed him as his deputy sheriff. It was after calculation made out to be $1,908.03; and he gave his note therefor and a deed of trust on his farm. The note was payable October 1, 1872, and the deed given June 18, 1872. This deed was given to release his sureties in his bond to King, and to prevent his property being applied to pay the debt, in which he was surety for Keeney. He admits, that nothing was said between them as to the extension of time or release of his securities. The sureties were not informed at the time that this deed of trust was executed or anything about its intended execution. He also deposed to...