30 Minn. 177 | Minn. | 1883
In March, 1872, Cornelias and Thomas Campion made their note, payable in two years, for $389.46 to Bastían, and, to secure the same, mortgaged to him 80 acres of land, of which Thomas was owner. The note was given for money borrowed of Bastían by Cornelius for his own exclusive use and benefit. By as
Upon the facts above recited it is clear that Thomas Campion was a surety for Cornelius upon the original note and mortgage, and this being, in legal contemplation, (Lebanon Savings Bank v. Hollenbeck, 29 Minn. 322,) known to J. C. Whitney when he gave the extension without Thomas Campion’s knowledge or consent, it is equally clear that, as between them, the extension operated to discharge Thomas Campion and to discharge his mortgage also. Wheaton v. Wheeler, 27 Minn. 464; Agnew v. Merritt, 10 Minn. 242, (308;) Allis v. Ware, 28 Minn. 166; Brandt on Suretyship, §§ 19-22; Gahn v. Niemcewicz, 11 Wend. 312; Smith v. Townsend, 25 N. Y. 479.
The principal question in the case is whether the discharge inures to the benefit of the plaintiffs as judgment creditors of Thomas Cam-pion, holding liens upon a portion of the mortgaged property, to wit, 50 acres, remaining in him when the judgments were docketed. In our opinion this question must be answered in the affirmative. Their liens bind all the right and interest held by Thomas Campion in the 50 acres when their judgments were docketed. That was a right and
But it is said that Thomas Campion might waive the discharge. What would have been the effect of a waiver taking place before the plaintiffs’ liens attached, we have no occasion to consider at this time, none such having been found. As to the waiver said to have occurred after the attaching of the plaintiffs’ liens, it cannot relate so as to impair the valuable rights accruing to plaintiffs from the taking effect of their liens. Stein v. La Dow, 13 Minn. 381, (412.)
The judgment is reversed and the ease remanded, with directions to enter judgment for the plaintiffs in accordance with this opinion.
Gilfillan, O. J., because of illness, took no part in this case,