| Mo. | Mar 15, 1858
delivered the opinion of the court.
The question in this case is whether the court below properly rejected as evidence the release of John Biddle offered by the plaintiff with a view to show that the defendant Wilson, who is the administrator of Thomas Hempstead and the husband of his heir Cornelia Hempstead, had no right to keep on foot, to his prejudice, the judgment mentioned in the release.
The release of the judgment against Thomas Hempstead by Biddle was with the exception that the judgment might still be used in the event it should become necessary for the protection of two parcels of land conveyed to Biddle. These parcels were the subject of a suit between Mrs. Wilson, as the heir of Thomas Hempstead, and John Biddle. The suit was compromised by the heir conveying to Biddle the land she sought to recover from him. Among other considerations for this compromise, Biddle released the heirs, executors and administrators of Thomas Hempstead from the judgment which has^iven rise to this litigation, except so far as it might be necessary to use it for the protection of the title
The plaintiff is a creditor of Thomas Hempstead; and Wilson and his wife (the heir of Hempstead) claim that they have a right to keep on foot the released judgment to the exclusion of other creditors until that judgment is ratified, it being a debt of a preferred class. The interest in the land that was passed- away by the compromise of Mrs. Wilson with Biddle was subject to the payment of the debts of Thomas Hempstead. His creditors, by taking the proper steps, may subject the interest owned in the land by Hemp-stead to the payment of their debts. Mrs. Wilson, as heir, held the land subject to the payment of debts. If she, as heir, aliened the land and by that act obtained a release of the estate from a judgment, why should not a creditor have the benefit of that release, he being willing to abide by the act by means of which it was obtained ? If this is not allowed, the creditors may avoid the compromise, and have the land sold which has been aliened away. Thus, by seeking to appropriate the released judgment to her use, and not to the benefit of the estate of her ancestor, she forces a violation of the compromise she has made, although she may have received other considerations for it than the release, thus placing Biddle where he was before the compromise minus the sum he may have paid for it in addition to the release. As the land which Mrs. Wilson aliened was subject to the payment of debts, and as by means of that alienation she has obtained a release of the estate of her ancestor from a judgment, there is no reason why a creditor should not have the benefit of it, as property in which he had an interest has been the means of obtaining it. Independently of the natural equity of the thing, justice to Biddle requires that such should be the construction of the contract, otherwise he is deprived of the sole advantage he sought by his compromise. We are considering this on principle. ^ie record shows that Biddle is hostile to the claim of the plaintiff; that he does not seek the benefit of the construction we have put
It may be urged that Biddle has purchased the interest of the heir, whatever it may be, and whatever she may have received for it is no concern of the creditor, as he is still free to act as though no alienation of. the land had been made, no compromise effected; that there is no privity between the creditors and-heir, no relation of trustee and cestui que trust, which entitles the creditor to any advantage or profit the heir may make by means of the inheritance. . Take it that the intimation thrown out in relation to this case is untenable, yet the fact is the estate of Hempstead has been released from the judgment. Because the heir procured the release, she has no right to. regard it as an. assignment to herself; there is nothing in the instrument which shows that it should enure to her benefit. On the contrary, such an idea by forcing the creditors to disturb the compromise, brings about the very state of things it was designed to prevent. The paper executed by Biddle is no assignment of his judgment to Mrs. Wilson; with the exception above referred to, it is a clear release. It stipulates that he is not to use or enforce said judgment so far as the same can be made to affect the heirs, executors or administrators of said Thomas Hemp-stead, or any property owned by them or either of them as such heirs, executors or administrators. The instrument also recites that the release of the .estate of Tilomas Hemp-stead, from said judgment is part of the consideration of the compromise. It is obvious that if this paper does not operate as a release it does not operate at all, and that it can not be construed into an assignment of the judgment.
The only difficulty that suggests itself in relation to the views first expressed about the case as to the right of the creditor to adopt the act of the heir arises in the event there are more creditors than one, and they do not unite in the adoption of the compromise. In such case, a portion of them by adopting it could not affect those who are unwilling
As to the attempt by Biddle to hold the judgment as against Charles H. Hempstead, who is a mere surety, it is futile. One joint co-obligor may be relieved from his portion of the obligation. But the release of the principal in an obligation will certainly discharge the surety; otherwise, if the surety is compelled to pay the debt, he will force the principal to reimburse him and thus the effect of the release will be destroyed.
The judgment is reversed and the cause remanded.