Winton v. Little

• Decision Date: 03 May 1880
• Citation: 94 Pa. 64
• Parties: Winton, President, & c., v. Little.
• Court: Pennsylvania Supreme Court

94 Pa. 64

Winton, President, & c., v. Little.

Supreme Court of Pennsylvania.

May 3, 1880

March 18, 1880

1?? Mere forbearance, however prejudicial to a surety, will not discharge him. The failure of a creditor to revive a judgment does not discharge a surety unless there was an express agreement at the time of giving the judgment that it should be kept revived for the benefit of the surety. United States v. Simpson, 3 P. & W. 437, followed.

2. Real estate security taken by a national bank for present or future advances is valid. Union National Bank of St Louis v. Matthews, 8 Otto 264, followed, under the authority of which all the decisions of this court, in conflict therewith, are overruled.

3. In 1872, a bank made a loan and received therefor a note and confession of judgment signed also by sureties. The note was taken by W., the president of the bank, and was made payable to " W., president or bearer." In order that the principal debtor might sell a portion of the lands in 1874 W. gave a release of liens signed " W., president." In 1876, the note not being paid, execution was issued against the sureties. At their instance, the execution was enjoined and an issue framed between " W., president of the bank," and the sureties. This issue was tried in 1879. W. had negotiated the loan, and done all the business respecting it, and the judgment stood in his name Held, that the long acquiescence of the bank in the acts of W. was a ratification of them, and it was bound by the release given by him.

4. Depositions were taken in obedience to a rule of court in the presence of the parties, and the witnesses were cross-examined. The justice of the peace certified " that the above witnesses were duly qualified and examined at the time and place stated in the caption before me." It was objected that they were not admissible, on the ground that the certificate was improper, inasmuch as it did not recite that they were reduced to writing, nor that they were subscribed in the presence of the justice by the parties Held, that it is to be presumed that the depositions were properly reduced to writing and subscribed by the witnesses, until the contrary was shown, and it was not error to admit them: Held, further, that not having made objection to the absence of the signature in the court below, no claim, by reason of such defect, could be made in this court.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Susquehanna county Of July Term 1879, No. 118 1/2.

This was an issue framed upon a judgment which had been opened, wherein J. S. Little and H. P. Little, executors of Mary Little, were plaintiffs, and W. W. Winton, president of the Second National Bank of Scranton, defendant.

At the trial, before Waller, P. J., it appeared that on the 2d of December 1872, J. S. Little being indebted to the Second National Bank of Scranton in the sum of $2955.17, applied to W. W. Winton, president, at the bank, for a loan of $4000, to pay this and other indebtedness. The president agreed to loan the amount for one year at 10 per cent. interest, if Little would get his brother, H. P. Little, and his mother, Mary Little, to sign a judgment note for the amount. The same day the note in question was signed by these parties for $4400, at one year, the interest being included in the note. When the note was received at the bank, on the 3d, the amount of $4000 was passed to the credit of J. S. Little. Judgment was entered on this note December 4th 1872, in Susquehanna county, where H. P. Little and Mary Little residcd, and an exemplification of the record filed in Wyoming county, where J. S. Little resided; the lands which the judgment bound being situated in those counties.

The note not being paid at maturity, a writ of fieri facias was issued March 3d 1876, and levied on the lands, whereupon H. P. Little and Mary Little made affidavit that they were sureties for J. S. Little, and that plaintiff had released land from the lien of the judgment without their consent, of sufficient value to pay the judgment. The sheriff was thereupon enjoined from selling, and a rule to open the judgment granted November 21st 1876. An additional affidavit was filed by leave of court, which set forth that there was some $800 in the hands of the assignee in bankruptcy of J. S. Little, which should be applied in payment of this judgment; that Little had other real estate of the value of $3000; that he had paid $640 on the judgment for which no credit had been given, and that he had, without the knowledge or consent of the defendants in the judgment, made an agreement with the principal debtor, upon consideration, to extend the time of payment for one year.

In January 1877, the rule to open the judgment was made absolute, and on November 17th 1877, the death of Mary Little was suggested, and H. P. Little, her executor, substituted.

On April 27th 1878, a new affidavit was filed, setting forth that defendant had permitted the lien of the judgment to expire against land of J. S. Little, and that the United States District Court had authorized the sale of J. S. Little's property, discharged of the lien of this judgment, but bound by the lien of other and subsequent judgments, and leave was granted to enlarge the issue made by the other affidavits, if the court, on the trial, should be of opinion that the facts set forth constituted a defence.

The issue came on for trial at April Term 1879, when the filing of this supplemental affidavit enlarging the issue was objected to, on the grounds: 1. That the facts set forth constituted no defence to the action. 2. That a new cause of action could not be set up after the death of one of the parties, which had changed the rules of evidence and would jeopardize the rights of plaintiffs.

The objections were overruled. (First assignment of error.)

The plaintiffs proposed to prove that an arrangement was made between Mr. Winton, acting for the bank, and Mr. J. S. Little, to release certain real estate owned by the latter from the lien of the judgment, and that in pursuance of that arrangement a written release was secured of certain property, and was filed and is of record in this case.

They also stated that they did not propose to show that the directors passed a written resolution authorizing this release, but that upon the faith of the release a portion of the property was sold, and that it was procured for the purpose of enabling said Little to sell, and that he did sell and used this release for the purpose of showing that there was no judgment upon the property; that it was put upon the records of this court and stood there for five years; that no act was done in any manner by the directors affecting or repudiating it.

The release was signed " W. W. Winton, president." There was nothing in the offer to show that the bank or any of its officers knew of the release, nor was there any note of it made on the judgment docket.

Objected to; especially that it does not purport to be a release by the Second National Bank of Scranton; that it purports to be a sealed release and is not sealed by the corporation; that there is no authority shown, or proposed to be shown, from the directors to W. W. Winton to sign or seal this paper release, or any other release; or to give any release to J. S. Little releasing the lien of the judgment. Objections overruled. (Second assignment.)

The plaintiffs then proposed to read depositions of Mary Little and H. P. Little taken before a justice of the peace upon rule and notice during the lifetime of Mary Little. Objected to on the ground that there is no proper certificate; it does not recite that they were reduced to writing by the justice, nor that they were subscribed to in his presence by the parties. Objection overruled, because they were taken in the presence of both parties and have been on file. (Third assignment.)

The plaintiffs presented the following points, to which are appended the answers of the court:

1. If the jury believe that the judgment in this case was given to secure future advances to be made to the principal debtor, J. S. Little, by the Second National Bank of Scranton, the judgment was absolutely void, and the plaintiff therein cannot recover.

2. If the judgment in this case was given in part to secure future advances to be made to J. S. Little, and in part to secure the payment of a debt already due the bank by J. S. Little, the judgment is void as to the part given to secure such future advances, and as to that part the plaintiff therein cannot recover.

Ans. " You will perceive that this presents questions of fact which we have already submitted to you, and we have virtually answered these two points in our general charge. We now, however, affirm these propositions, with the qualification that it is for you to ascertain from the evidence whether these facts are established." (Ninth and tenth assignments.)

The following were among the points of defendant, with the answers of the court thereto:

5. That the sureties having shown no authority in W. W. Winton to execute the release of the lien of this judgment, the same is not valid and binding upon the plaintiff in the judgment and does not operate to release the sureties unless the act was ratified by the plaintiff subsequently.

Ans. " We decline this proposition, and leave it with such suggestions and instructions as we have already given you upon that point." (Eleventh assignment.)

6. That there can be no ratification of an act of an agent of which the principal has no knowledge, and the mere fact of filing a paper purporting to be a release in the Common Pleas docket of a county distant from the place of business of a bank, is no...