Massey v. Brown, 4 S.C. 85

Massey v. Brown

4 S.C. 85 | S.C. | 1872

The opinion of the Court was delivered by

Moses, C. J.

The proposition of the appellant, that a release by the debtor of one of the joint and several sureties does not operate to discharge the other, cannot be maintained. At law, a discharge of one surety by the creditor will bar a recovery against all in the like relation to the debt. — Burge on Suretyship, 156 ; Nicholas vs. *94Revell, 4 Ad. & Ell., 675. The same rule will generally prevail in equity. The argument before us, insisting on a contrary doctrine, relies for its support on Ex Parte Gifford, 6 Ves., 805, in which Lord Eldon held that the discharge of one surety did not release the other sureties, and although Mr. Justice Story, in note to page 572 of his first volume on Equity Jurisprudence, interposes to defend the distinguished Chancellor from the strictures to which his decision has been subjected, it must be admitted that his conclusion has not been accepted as the ruling authority on the question. — Nichol-son vs. Revell, 6 Nev. & Mann., 192, 200 ; Evans vs. Brembridge, 35 Eng. L. & E. R., 398.

Equity construes a release according to the intention of the parties, and will give it no operation beyond the design or the purpose it was intended to accomplish. The principle is so fully enforced by Chancellor Kent, in Kirby vs. Taylor, 6 John. Ch., 242, that any further reference to authority in support of the rule is unnecessary. It is certainly in strict consistency with the doctrine of equity, which always seeks, if possible, to give effect to the intent which induced the Act, if it can be ascertained without a violation of the rules of law. We cannot, however, refrain, because they appear so pertinent to the case before us, from referring, in the language of the Chancellor, to some of the authorities on which he rested his opinion: Lord Hardwieke said, in the case of Cole vs. Gibson, 1 Ves., 503, “ that it was common in equity to restrain a general release to what was under consideration at the time of giving it.” And, again, in Ramsden vs. Hitton, 2 Ves., 304, he observed, “ that if a release be given on a particular consideration recited, notwithstanding that the release concludes with general words, yet the law, in order to prevent such surprise, will construe it to relate to the particular matter recited, which was under the contemplation of the parties, and intended to be released.”

The declarations of D. W. Brown, at the time of the execution of the release, were not offered to explain, vary, or contradict the language of the instrument discharging him. It was not to add conditions or restrictions which would impose on the immediate parties to it, as between themselves, any other obligations than those which it plainly expressed, or in any way to contravene or disturb the contract between them, but they were offered to show that while Brown was not to be held chargeable by Massey for any further amount, as the consideration for the discharge of his lia*95bility on the bond, the rights of Massey, as to the other surety, Barnes, were not to be prejudiced by reason of his release. They were to show something extrinsic to, and outside of, the discharge. Viewing the evidence in this light, we do notpreceive any objection to its competency. Giving effect to the release according to the intention of both the parties, and remembering that Brown was the executor of Barnes, we cannot hold it as discharging the estate of which he was the personal representative from liability on the bond.

While we must reverse the judgment of the Court below on the effect of the discharge, another question arises, and should be determined before a final adjudication can be had, and that is, as to the liability of Brown, (conceding the principal and the other surety, Cureton, to be insolvent,) to contribute to the amount which the estate of Barnes may be required to pay for the default of the guardian. In other words, does the compromise of Brown, as between him and the estate he represented at the time, enure also to its benefit, and, if so, to what extent ? As all the parties are before us, it is possible we have authority to decide it; but Brown should be first heard, and we prefer first, therefore, to remit it to the judgment'of the Circuit Court.

The decree of the Judge below is reversed, and the case is remanded to the Circuit Court for the County of Lancaster, to be heard on the point indicated in this opinion, and such other questions as may further properly arise out of the pleadings.

Wright, A. J., and Wizard, A. J., concurred.