67 Iowa 44 | Iowa | 1885
The relief demanded by plaintiffs in this action is that they have the benefit of a credit on the judgments against them for the full amount realized from the sale of said lot; the ground of their claim being that, as their liability on the bonds was that of sureties, they were entitled to the benefit of all securities which came into the hands of the creditor; and as, by the discharge of a portion of the value of said lot from the lien of the attachment levy and judgment, he deprived them of the benefits of that amount of the secuity held by him, they are now entitled to be discharged fro tanto. The law is well settled that the relinquishment by the creditor, without the consent of the surety, of any hold which he has actually
The question in the present case is whether it is brought by the facts within this well-settled rule. We think it is not. The interest which defendant surrendered' in the property was given up in the compromise of a doubtful claim. The parties are now able to show that he had acquired a lien upon the property by the attachment levy and judgment, and that it could have been subjected to sale in satisfaction of the judgment. But, in the light of the facts then known to defendant and his counsel, it was reasonably doubtful whether any such interest had been acquired in it, and he elected to accept the certain and substantial advantages which were acquired by the compromise in satisfaction of the doubtful claim which he had been asserting to'the property. It cannot be said, we think, that plaintiffs have suffered any detriment from the compromise or the release of the property thereunder. The surety has the right to demand that the securities in the hands of the creditor be either applied to the satisfaction of the debt, or that they be preserved for his indemnity in case he is compelled to pay it. The application of the fair value of the security to the satisfaction of the debt secures to him the very benefit to which, under the law, he is entitled. As stated above, defendant has credited the full amount received by him for the discharge of the lot on the judgment against Briscoe. Plaintiffs have the benefit of this credit. It is not shown that this sum was not, considering the circumstances of the case, the fair value of the security held by defend
Plaintiffs were able to establish on the trial of this cause, by the testimony of Briscoe, that he was the owner of the property, and that he had procured it to be conveyed to his wife for the purpose of placing it beyond the reach of his creditors. His testimony, however, was given after the property had been released and disjiosed of, and when all motive for concealment or falsehood was at an end; but it is not at all certain that the same facts could have been proven by him in a proceeding to subject the property to the payment of the debt; for, during the pendency of the equitable action brought by defendant to uncover it, he constantly denied that he had any interest in it, and it is not shown that any facts tending to impeach the conveyance to Mary A. Briscoe could have been established by the testimony of other witnesses. It does not appear, therefore, that plaintiffs would have derived any greater advantage from the prosecution, either by defendant or themselves, of the proceeding to subject the property to the judgment than they have derived from the compromise, and they cannot recover in the absence of any showing that they were damaged by the release of the property.
Affirmed.