15 Vt. 252 | Vt. | 1843
The opinion of the court was delivered by
This was an action upon a promissory note, against the defendant, and one Woodworth, for whom the defendant signed as surety. The defendant contends that the plaintiff, is not entitled to judgment against her, she being surety, for two reasons.
1. Because the said Woodworth had put certain securities into plaintiff’s hands, of which he has not availed himself.
2. Because, after the note became due, the plaintiff was shown personal property belonging to Woodworth, that he might have attached.
In relation to the first, it is enough, perhaps, to say, that it does not appear that any security was put into bis hands, of which, even with diligence, he could have availed himself. It appears that Woodworth gave the plaintiff, a bill of sale of some standing grain, but Woodworth controlled it and refused to let plaintiff have it, and we are not prepared to say that the plaintiff must go into an uncertain law suit about the grain before he can have his action against the defendant. But the law is not very well settled, that a creditor may not relinquish security that is under his control, and then resort to the undersigner of the note. The case of The Bank of Montpelier v. Dixon, 4 Vt. R. 587, seems to recognize the doctrine, that security may be relinquished and the undersigner pursued to the fullest extent. The payee of the note may give up such security as he may have obtained, at his own suggestion, without any assistance from the surety, provided he acts in good faith, and only with reference to his own interest. But as we do not discover that the plaintiff, had any security that he could control, he had a right to his action against the surety.
In regard to the second objection, we think the payee of a noté is never bound to regard the directions of the surety.
The other branch of the case presents the question, whether the trustees are to be holden upon their disclosures, for the property which they bought of the defendant.
It seems, that one week before the plaintiff’s note fell due, they took a sweeping sale of all the property of which the defendant was possessed, real and personal, and obligated themselves, that they would support her for the same, as the only consideration, paying nothing and agreeing to pay nothing, only by way of support — and leaving nothing for the payment of debts. Now if the law' would tolerate a proceeding like this, any person, having the means, may make ample provision for himself and family during life, at the expense of his creditors. But that would not be permitted. We think this transaction strongly marked with fraud, and that this whole property, notwithstanding the sale, was liable to attachment as the property of the defendant. The authorities referred to, to show that this, being a fraudulent sale, could not be the subject of a trustee process, have reference to the statutes as they were before the revision.
Perhaps, the judgment of the county court would have been more technically correct, if it had adjudged them trustees for the specific articles of personal property which they received of the defendant, instead of adjudging them trustees generally ; but as there appears to have been enough personal property to cover the plaintiff’s damage and cost, and as it is probable, that, at this time, much of the property may have been changed, or gone out of existence, we presume that the trustees would prefer to have the judgment affirmed here, rather than to have have it reversed and sent back merely for informality.
The judgment of the county court is affirmed.
