49 Mo. App. 563 | Mo. Ct. App. | 1892
This is a suit in equity against the plaintiff in a judgment, and also against the sheriff holding an execution thereunder, to enjoin an enforcement of the judgment. The ground of the action was that the plaintiff was a surety in the debt which had passed into judgment, and that, since the rendition of the judgment, the principal defendant had taken a chattel mortgage from the principal debtor upon a crop of wheat, and that he had negligently suffered the principal judgment debtor to make way with the wheat instead of enforcing his security against it, — by reason of which negligence the plaintiff had become released from his obligation to satisfy the debt to the extent of the value of the property embraced in the chattel mortgage. The plaintiff had a decree for a perpetual injunction, and the defendant prosecutes an appeal to this court.
It appeared in evidence that, on February 5, 1876, Hiram T. Dickerson and Albert English executed their joint note for $125 to Lowndes H. Davis; that, after the maturity of said note, the defendant Seibert became the purchaser and owner thereof; that Seibert brought suit thereon against both of the makers thereof, and recovered judgment against them; that in the meantime Seibert had removed from Cape Girardeau to Jefferson City, and had left the collection of his debts and the charge of his business in the hands of R. P. Wilson, as his agent and attorney. The scope of Wilson’s powers as agent and attorney does not very distinctly appear. Wilson brought suit on the note and prosecuted it to judgment for Seibert. He caused execution to be sued out thereunder, which execution,
After the note had thus been reduced to judgment, it was arranged between Dickerson, the principal judgment defendant, and Wilson, acting as attorney and agent for Seibert, the plaintiff in judgment, that Dickerson should secure the judgment by' giving a ■chattel mortgage upon his crop of wheat. But, when it came to fulfilling-this agreement, Dickerson merely signed such a mortgage and delivered it to- Wilson, but refused to acknowledge it formally so that it could be put upon record. His object in refusing to acknowledge it and have it go to record was that he did not wish to make a public disclosure of the fact of giving it. Of course, the mortgage was good between the parties after being signed and delivered, without being formally acknowledged and recorded.
After thus having given the chattel mortgage, Dickerson proceeded to harvest and thresh his wheat, and to market it load by -load. As fast as he sold it, some of his other creditors would pounce upon him, and .get the money away from him, as he testifies, for he was deeply involved in debt. Before Dickerson had threshed his wheat, Wilson informed English, this plaintiff (the surety), that he had taken this mortgage.
Upon this state of facts we take the law to be that English was not entitled to an injunction. This conclusion seems indisputable, notwithstanding several propositions of law invoked by the plaintiff, which are firmly settled in this state. One of these propositions is that a comaker of a promissory note, not negotiated before maturity in the usual course of business, may
But we take it that this principle cannot be invoked so as to help out the plaintiff on the state of facts disclosed by this evidence. The principle, which runs through all the cases above cited, and all the cases on the subject with which we are acquainted, is that, while the creditor is not bound to put himself to any trouble, or to do any affirmative act for the purpose of helping out the surety, except in cases under the statute where the surety may call upon him to bring suit, yet, if he does do some affirmative act by which he secures a valid lien or security upon the property of the principal debtor, then he is bound to hold on to that lien or security; and, if by another affirmative act he releases it, he exonerates the surety. But he is bound to do no more than merely to hold on to it. Having exerted himself in getting it, he is not bound to put himself to any further exertion in order to enforce it. We know of no case where it is held that, if by his mere negligence or non-action the lien or security becomes fruitless, this
So, in the case in which Judge Norton used the inaccurate expression above quoted, the holder of a negotiable promissory note had reduced it to judgment against the maker, and had caused execution under the judgment to be- levied upon property of the maker sufficient to pay the debt, and afterwards voluntarily released the levy without the consent of one who was an accommodation indorser, and consequently a surety upon the paper. It was held that this operated to release the indorser; He was not released by reason of the-negligence of the creditor in failing to go forward and do-some further affirmative act to enforce the lien which he had obtained by his levy; but he was released by reason of the affirmative and voluntary act of the creditor in releasing that levy, which the surety had a. right to have retained for his own benefit and exoneration. "We must, therefore, take it that, as Wilson acting for the defendant did no affirmative act to release or discharge the lien of the chattel mortgage, but merely neglected' to go forward and constitute himself the active agent or trustee of the surety for the purpose of enforcing it, the surety has not been discharged under the principle of law which he invokes. He knew of the-existence of the mortgage; he knew when the principal debtor threshed his wheat. He might then have paid the debt, which he stood under a legal obligation to pay, and might have demanded that the mortgage bo
The judgment of the circuit court will be reversed.