10 Rob. 412 | La. | 1845
This action was instituted to obtain the erazure of a mortgage resulting from a judgment rendered in favor of the Union Bank of Louisiana against the petitioner, as endorser of a note for $20,699 22, dated the 12th day of April, 1839, and payable to his order, twelve months after date, by Bullitt, Ship & Co. in liquidation, John Routh, Austin Williams, Joseph C. Ferriday, and Robert Ferriday, as joint and several drawers thereof. The petition alleges that, subsequently to the rendition of this judgment, to wit, on the 12th of May, 1841, the Union Bank entered into an arrangement with John Routh, one of the drawers in solido, whereby he acknowledged himself indebted to them, in the sum of $99,202 41, which indebtedness, it was stated in the notarial act passed between the parties, arose out of six several promissory notes, among which was the note on
From the act of mortgage executed on the 12th of May, 1841, it appears that the two notes above described, and a third one for $22,413 15, drawn by the same parties, and endorsed by the plaintiff, formed, with other notes, and a draft due to the bank by Routh, the sum of $93,508 51, to which was added, the further sum $5,693 90, for costs of protest and interest at the rate of seven per cent per annum, calculated on the notes due, up to the 1.0th of February, 1842. To secure the aggregate amount of principal and interest, Routh executed to the bank his bond, with a mortgage on a plantation in the parish of Concordia, and on seventy-five slaves, and was allowed a credit of eight years to pay the same, with the privilege of deferring the payment of the first instalment until the 10th day of February, 1843, by paying interest on the whole amount of the obligation at the rate of seven per cent per annum, for one year. The contract thus entered into between the bank and Routh, might well be considered as a novation of the former debt; but whether it be so considered, or whether it be viewed only as a prolongation of the term for payment, its legal effect on the obligation of the plaintiff, as an accommodation endorser, was the same. It completely discharged him. Civil Code, arts. 2194, 3032. He cannot consider the clause in relation to the renunciation of Routh’s wife, as forming a suspensive condition of the agreement to give time. It does not appear either from the words of the instrument, nor from the acts of the parties, that they intended to make the existence of the agreement depend upon the fulfilment of the obligation to procure the renunciation. The act was perfected, and a few days after recorded in the parish of Concordia, where the mortgaged property was situated. It took effect immediately in favor of the bank, and protected them from the operation of other mortgages and liens subse
The counsel for the defence has made two points in this court:
1st. That the bank, in their contract with Routh, reserved their rights against the plaintiff, and that, therefore, the latter was not discharged by the extension of time they granted to their debtor.
2d. That after judgment against a surety, he becomes an absolute debtor, and can no longer be viewed in the light of a surety, and claim be benefit of the rules which govern the contract of suretiship.
I. The clause relied on by the bank, as containing a reservation of their rights against the plaintiff, is in the following words, to wit:
“ Whereas the said John Routh has offered to grant the foregoing mortgage and security, for his individual liability resulting from the said notes and drafts, without prejudice to the rights which the bank may choose to exercise against the other parties thereto, for the purpose of obtaining a more prompt settlement of the said notes and draft; and whereas the said Union Bank of Louisiana, and the said John Routh have agreed, in the event of the said notes and draft failing to be paid in part, or in toto, by the other parties, then and in that case the said notes and draft shall belong to the said Routh, after he shall have paid the whole amount of the said obligation. Now, therefore, it is hereby expressly agreed and stipulated, that the notes and draft, or whichever of them shall not have been paid by the other parties thereto, shall remain in the possession of the bank during the continuance of this mortgage, and that the same shall belong
In speaking of the extinction, by novation, of a surety’s obligation, which under our law is as effectually destroyed by an extension of time granted to the principal debtor, Toullier says : “ Quelque stipulation, quelque réserve, que le créancier puisse insérer dans le contrat de novation, en l’absence du fidéjusseur, il se fait á l’égard de ce dernier, une extinction totale, et non pas une suspension de son obligation. Yol. 7, No. 314. “Car,” says the same author in another place, “une protestation ne peut empécher l’effet nécessaire et essentiel d’un acte. C’est un principe constant, que toute protestation et réserve contraire á la substance méme de l’acte oú elle est contenue n’est d’aucune considération lorsque celui qui Fa faite pouvait agir autrement. No. 308. We conclude then, that no reservation which a creditor can make, in a contract containing a novation of the debt, or allowing a prolongation of time to the principal debtor, can preserve his rights against the surety who was not a party to such contract:
II. In relation to the effect of the judgment rendered against the plaintiff, this court held, in Calliham v. Tanner, that a judgment obtained against a surety did not change the character of his debt, nor the relation in which he stood to the principal debtor; and that a prolongation of time granted to the latter released the obligation of the former, in the same manner as if there.was no judgment against him. 3 Rob., p. 299. Upon further reflection, we have no reason to be dissatisfied with the opinion then expressed. A judgment does not create, add to, nor detract, from the indebtedness of a party; it only declares it to exist fixes its amount, and secures to the suitor the means of enforcing payment. If under the law, the debt creates a privilege or tacit mortgage, such privilege or tacit mortgage exists independent of the judgment rendered upon it. When a creditor obtains a judgment against the principal debtor and the surety, both are, to be sure, equally and absoluely bound for the debt; but why is i t
It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and that the judgment obtained by the Union Bank of Louisiana against Samuel Gustine, rendered on the 22d of December, 1840, be and remain without effect; and that the judicial mortgage, resulting from its registry in the office of the parish judge of Concordia, be cancelled and erased; and it is further ordered, that the reconventional demand set up by the defendants be dismissed. The appellees to pay the costs in both courts.