62 Iowa 72 | Iowa | 1883
The material facts of this case are as follows: Joseph Shitler was a mere surety upon the note in question, and that fact was known to the payee, John Lambert. On the 20th of March, 1877, Joseph Shitler procured his attorney, S. M. Finch, Esq., to commence in the name of John Lambert an action against Obristain Shitler on said note, and on the same day caused an attachment to be levied upon two hundred and ninety acres of land, worth from $40 to $45 per acre, forty acres of which was the homestead of Obristain Shitler. There was a mortgage upon this jnoperty for about $4,500, and prior attachments for the amount of $5,724.73, and one levied concurrently with the attachment in question for $1,000. On the 20th day of May, 1877, John Lambert and twenty-one other attaching creditors of Christain Shitler entered into an agreement with him as follows: ‘‘Whereas Ohristain.Shitler is largely indebted to various persons, largely beyond his ability to liquidate the same, he being willing, however, to turn over all his jnoperty for the liquidation of the said indebtedness, save and except a small portion of his property which we have all agreed that he should retain, and whereas certain of his friends have agreed to answer a large portion of his indebtedness for him, in consideration of the transfer of his property to persons in trust, to be used by them in the liquidation of said indebtedness, now, therefore,
Here follow the names of the various creditors, including the name of John Lambert, with the amounts they had agreed to discount their claims. When the agreement was
It is insisted by the appellant that this agreement operated to extend time to the principal, and that the surety is thereby discharged. The agreement was supported by the consideration that Lambert agreed to turn over exempt property, and his friends agreed to answer a large portion of his indebtedness. What, then, was the legal effect of this agreement? Could Lambert, after having entered into the agreement, have employed ordinary remedies for the collection of his debt? He entered into the agreement in connection with twenty-one other attaching creditors. In this agreement, all. of the creditors stipulate that all the property of Shitler, and the amounts subscribed by his friends, shall be placed in the. hands of trustees, and turned into money, and paid over pro rata, as fast as the proceeds can be converted into money. The parties further agree to rebate the interest for nine months, unless the money is sooner realized for payment of the claims; from which it appears that the parties contemplated nine months as probably necessary to convert the property into money and pay upon the claims. Now, it is evident, we think, that Lambert could not have proceeded by ordinary suit, and the sequestration of the property of Shitler, without violating the terms of this agreement. The agreement, it is to be observed, covers all the property of Shitler, except a small portion which the creditors agreed he should retain. If Lambert, notwithstanding the agreement, had a right to sue, and appropriate a portion of Shitler’s property, all the
Reversed.