White v. Graves

• Decision Date: 01 January 1855
• Citation: 15 Tex. 183
• Parties: HARDIN WHITE v. J. A. GRAVES, ADM'R.
• Court: Texas Supreme Court

15 Tex. 183

HARDIN WHITE

v.J. A. GRAVES, ADM'R.

Supreme Court of Texas.

1855.

See this case as to an objection by a surety, in an action to revive a judgment, that the plaintiff by his indulgence of the principal debtor, and laches in enforcing his judgment or preserving its lien, had discharged the surety.

A sufficient levy on land, without a sale is not prima facie a satisfaction of the judgment, as in case of a sufficient levy on personal property. [10 Tex. 153;28 Tex. 202.]

Appeal from Washington. Suit by the appellee, administrator of Neibling, commenced September 12, 1853, against the appellant, to revive a judgment recovered by Neibling on the 7th of May, 1845, in the district court, against the defendant and Josiah J. Crosby, since deceased.

The facts proved were: the judgment against Crosby, and this defendant as his surety, as alleged; execution, January 8, 1846, levied on two hundred acres as the property of Crosby, and sold for $20; March 16, 1846, same execution levied on thirty-six acres of land out of Andrew Miller's league of land, etc., describing metes and bounds; May 5, 1846, sale stopped by order of the plaintiff's attorney.

Defendant proved that the sale of the thirty-six acres was stopped by plaintiff at the solicitation of Crosby.

Plaintiff proved that Neibling died in May, 1846.

The following instructions were given at the request of the plaintiff:

1st. Should the jury believe that time was given on the judgment, to either of the defendants, that fact would not release the other co-defendant; they both being bound by the judgment, neither could be released except by payment or satisfaction of the judgment.

2d. A levy upon land is no satisfaction of the judgment, provided the land is not sold.

3d. The postponement of a sale, upon an execution, by the plaintiff, does not release either of the defendants in execution, even if one of the defendants might have been a surety.

The defendant asked the court to instruct the jury,

1st. That if the jury believe there was a valid levy upon thirty-six acres of land, under an execution against the defendant and Crosby, founded on the judgment here sued on, that levy was prima facie a satisfaction of the judgment, and the plaintiff cannot recover unless he has shown the insufficiency of the levy.

2d. That if the plaintiff, by long indulgence of the defendant Crosby, permitted the execution to be held up for an unreasonable length of time, and thereby lost his lien, the present defendant, being a surety, is discharged by such unreasonable indulgence.

These instructions were refused. Verdict and judgment for plaintiff. Motion for new trial overruled.

The assignment of errors covered the giving and refusal of instructions, and the overruling motion for a new trial.

G. W. Norton, for appellant. The point most relied on for a reversal of the judgment in this case is, the refusal of the court to give the second charge asked by the defendant in the court below.

Some of the authorities go to the effect that after judgment the distinction of principal and security is destroyed, but the weight of authority is clearly the reverse. (See notes to the cases of United States v. Howell, and Harris v. Brooks, 2 American Leading Cases, at 319 and 320.)

Be this, however, as it may, the original judgment was rendered against Crosby as principal, and White as surety; this is expressly shown in the judgment. The action of Neibling in stopping the sale of the thirty-six acres of land levied on under the execution was clearly a discharge of White, the surety. When, on an execution against a principal and surety, property of the principal is levied on, a discharge of such levy by the plaintiff, without the consent of the surety, is a discharge of the surety. (Curan v. Colbert, 3 Kelly, 239; Brown v. Riggins, Id. 405, cited in the American Annual Digest, vol. 8, p. 340; see also Glass v. Thompson, 9 B. Mon. 235; State Bank v. Edwards, 20 Ala. 512.)

A creditor who releases any security which he holds for the payment of his debts, thereby releases a surety pro tanto. (Niff's Appeal, 9 Watts and Sergeant; Baker v. Briggs, 8 Pick. 122;Commonwealth v. Vanderslice, 8 Serg. & Rawle, 457; Id. 452; Lichtenthaler v. Thompson, 13 Id. 157.)

The court is also referred to the notes to the case of Pain v. Packhard, and King v. Baldwin, reported in 2d American Leading Cases, at page 263.

J. Willie, also for appellant.

J. D. & D. C. Giddings, for appellee. Postponing the sale at the instance of Crosby, co-defendant, would not release the other defendant. (Walker v. Bradley, 2 Pike; Codral v. Field, 6 Yerg. 305.)

A levy upon land is no satisfaction of an execution or judgment, if the land is not sold. (Hoghshead v. Cornett, 5 Yerg. 227; Codral v. Fields, 6 Yerg. 305;Ostrander v. Walter, 2 Hill, 329.)

The charges asked by the defendant were not of law, and, if they had been, were irrelevant to the testimony and properly refused.

The authorities cited by appellant, in relation to the...