Dibrell v. Dandridge

51 Miss. 55 | Miss. | 1875

Simrall, J.,

delivered the opinion of the court.

This is a controversy between Dibrell and Taylor, as to the appropriation of $1,000 realized by Dandridge, coroner, for the sale of property of W. B. Buchannan, judgment debtor.

One Rawls, on November 2, 1866, recovered a judgment against Buchannan, as maker, and said Dibrell, as indorser, of a promissory note. On October 2, 1867, Dibrell paid to the sheriff, who held an execution on this judgment, the full amount of principal and interest, and took his receipt therefor.

Dibrell, on August 2, 1872, made affidavit that he was indorser on the note, which had been recovered upon, and that he had paid the judgment. Execution was issued by the clerk, indorsed for the benefit of Dibrell. Such is the claim of Dibrell.

On November 8, 1868, Alonzo N. Taylor recovered a judgment in the same court against Buchannan and F. M. James. On this judgment an execution was issued on July 10, 1872. Under this execution the property was sold to A. N. Taylor for $1,000. Such is Taylor’s claim to the money.

It will be observed that the judgment under which Dibrell asserts a right to the money, is older than that in favor of Taylor, and would have a preference, on account of superior lien, if, indeed, Dibrell occupies such relation to the principal debtor, Buchannan, as would subrogate him under the statute to the rights of the judgment creditor.

Under the statute, the officer making money by sale, under execution, must consuLt the judgment roll and apply the money to the eldest judgment or decree having the priority of lien, or, if in doubt as to the rights of parties, he may consult the constitution, and act under its direction. Brown & Johnston v. Bacon et al., 27 Miss., 601-2-3; Bonaffee v. Fisk, 13 S. & M., 682; M. & O. R. R. Co. v. Trotter, 36 Miss., 417.

The plaintiff in error, Dibrell, places his right upon § 2258, Code of 1871, which allows “ any one or more of the sureties or surety, who has paid and satisfied a judgment or decree rendered against the principal debtor and his sureties, or against the sureties only, to make affidavit of his suretyship and of such payment, and file the same with the clerk; and thereupon the clerk shall issue execution as if the judgment had not been paid, and'indorse upon it that it is for the use of the surety, and the sheriff shall proceed to collect from the principal debtor. The payment of the judgment or decree by the sheriff, operates under the act to transfer and assign the judgment to him, and he may proceed in the manner indicated to obtain the benefit of it. This section is one of several in ch. 49, art. 1, entitled “ How sureties may be relieved.” The first section of this article provides a mode by which a “surety or accommodation indorser” may be relieved before-suit brought. ' The third section entitles the surety or indorser who has, after maturity, paid the holder of the paper, or made a tender thereof, to an assignment, and such assignee may have an action in his own name against the principal debtor. These several sections use the terms surety, indorser, and accommodation indorser, not as .representing the same character, but in their usual acceptation, as understood in the law. Section 2258 uses the word “sureties,” and extends its special privileges only to those who stand in that relation to the principal debtor. Nothing more is shown in this case than that Dibrell paid the judgment which had been rendered against him. and Buchannan, maker of the-note. It appears that he was charged as indorser. It is not shown in the testimony that he was accommodation indorser for Buchannan, or put his name on the paper for his credit and benefit. The implication is that he indorsed the note to Bawls in- due course of trade, for value, and assumes the contingent and condi- • tional liability incident to that sort of contract. If it be claimed that the indorser sustains the relation to the maker of indorsing for accommodation, and for his credit, that special arrangement must be shown by testimony. This note was negotiable; if nothing more be shown than that Dibrell indorsed it to Bawls, then the presumption is that he transferred it for value received from the indorsee, or upon some consideration which was the inducement to that contract.

If it were conceded that an accommodation indorser was a surety for the maker, so as to entitle him to the benefits, of an assignment, by operation of law, of the judgment, on compliance with the conditions of the statute, Dibrell would not be entitled to the money, because he has not shown that such was his relation to the maker of the note. Whether an accommodation indorser is within thci intendment of the statute, does not arise in this case, and we express no opinion upon it. It may, however, be remarked, that it is a well settled principle of commercial law, that parties to negotiable paper, in the absence of an agreement, express or implied, are bound as their names appear on the paper.

In Bates v. Branch Bank Mobile, 2 Ala., 689, and Stodder, Ex’r, v. Cardwell, 20 Ala., 223, it was held by the supreme court of Alabama, under a statute framed on the same principle as ours, that the accommodation indorser was not entitled to the statutory remedy. The Alabama statute allowed judgment to be entered up on motion against the principal debtor, in behalf of the “ security or securities upon any bill, bond, note,” etc., who had been compelled by suit to pay the same. In the cases referred to, after great consideration, it was held that the accommodation indorser was not a “surety” within the meaning of the statute. Our statute is more peremptory and summary than that of Alabama. It assigns tbe judgment to the surety, and gives him final process to coerce payment. It is in derogation of the common law. The party who claims under it must bring himself within its provisions.

We are of opinion that Dibrell has not shown that he was the surety of Buchanuan within the requirements of the statute, and that he did not, by operation of law, become assignee of the judgment, with the privilege to collect the debt by execution.

There was no error in the judgment denying him the money, but appropriating it to pay his judgment.

Judgment is affirmed.