9 Ala. 949 | Ala. | 1846
The note which the defendants in error united with R. D. James in making, matured in March, 1842, and in February preceding, the proposition of the principal to convey property to the plaintiff, upon a stipulation that he should not be sued, nor his property sold for five years thereafter, was submitted to the Bank; and afterwards consummated by the execution of a deed of trust. Here was a clear agreement by the creditor to give time to the principal upon a sufficient consideration — the conveyance by way of security of a large estate, apparently more than adequate to pay the debt in toto. This being the condition of the case as shown by the record the legal inference is, that the contract as proved by the deed of trust, is obligatory upon both parties.
The note sought to be recovered does not in haec verba, describe the parties either as principals or sureties, but merely as joint-promissors, so that those cases which maintain, that, where a party has stated the character in which he contracts, he shall not be allowed to prove the reverse by extrinsic evidence, have no application.
It must be conceded that the prima facie intendment in a 'case like the present, is, that the parties who subscribed the note are co-makers merely, and it devolves upon those who would profit by showing the contrary, to prove it. There are certainly quite a number of cases, both English and American, which maintain that it is not allowable for a joint obligor, whose suretyship is not indicated by the instrument to establish the fact by parol evidence, and that the parties to an accommodation bill occupy a different relation inter se than that the paper itself shows. But it is apprehended that the American decisions do not sustain so stringent a rule in respect to promissory notes ; and it may
But it is insisted, that conceding the admissibility of the proof, it can avail nothing, unless the payee of the note was informed at the time of its acceptance of the relative position of the parties. We are aware that some of the cases in respect to accommodation bills have admitted the relation of the parties to be shown to be different in legal effect from the situation they occupy upon the paper, where the facts are communicated to the holder at the time he receives it. And where he was not then informed of it, such proof has been rejected upon the ground, that it would be a fraud upon his rights, or the parties were estopped from offering it — the parties having impliedly admitted that they were liable in the order in which their names appear. Whether these cases are defensible upon principle or not, we need not now inquire. But we may remark that we are not insensible to the force of the argument upon this point; it can be very well imagined why paper not subject to the law of principal and surety would sometimes be more valuable, than if it were thus trammelled. Y et our researches do not furnish a single case where a promissory note was sought to be recovered, in which the distinction is taken between the effect of information in respect to the character of the makers undertaking, communicated contemporaneously with, or subsequent to its delivery. Our own decisions have never recognized the distinction, but like those of other States, and elementary works, lay down the law broadly. Under these circumstances, we do not feel authorized to innovate upon the general and long continued understanding both of the bench and the bar. If the law upon this point, as heretofore understood, is prejudicial to creditors, it were better that the Legislature should apply the appropriate corrective.
Our conclusion is, that the judgment must be affirmed.
