McCourtney v. Sloan
15 Mo. 95
Mo.
1851
Check Treatment
Scott, J.,

delivered the opinion of the court.

After a full examination of this cause, we cannot perceive the grounds on which an affirmance of the decree below can be sustained. That decree, although its aim seems to be to do what is justice between the parties, is based upon principles at war with the rights of the appellants, acquired by a due course of law. They insist on their rights, and although in the course of events, they have got the advantage, yet their conduct does not appear to have been affected by any circumstances which can impair their claims.

The matter of pledging the whisky to Sloan, as an indemnity to him and his co-securities, may be laid out of the question, as the charge is not supported by the evidence.

After Sloan and Krepps had satisfied half of the judgment against the four sureties, there was no impropriety in their using the name of Walton, the creditor, in order to recover the share of the debt due by John McCourtney, Jr. Such a transaction is of daily occurance: sureties are constantly using the names of creditors to enforce contribution from a co-security- Although the judgment was rendered for a sum twice as great as it should have been, yet that circumstance does not attach any blame to the appellants, as it appears fiom the records, that the sum actually due was only claimed, and the affidavit for the attachments only verified that sum. The error, in the rendition of the judgment, was plainly a clerical misprision, and, so far as this cause is concerned, did not prejudice John McCourtney, Sr. The fact, that Sloan did not call upon John McCourtney, Jr., for a settlement of his ortion of the surety debt, until after the sale of the land in controversy P *100under an execution in the attachment suit, and his failure to mention that circumstance at the time of the settlement, creates no suspicion of a desire on his part, to obtain an undue advantage over McCourtney. The fact, that John McCourtney, Sr. was insolvent, imposed on the three remaining sureties an obligation to satisfy his portion of the debt. Until the determination of the attachment suit and a sale, it could not be ascertained what portion, if any, of the surety debt would fall upon him. Tiie suit, we may suppose, was wholly unavailing. The land sold for fifty dollars only; of this sum, thirty-two dollars were paid as the attorney’s fee. Considering the nature of the suit and the residence of the parties, little is hazarded in saying, that the balance of the sum was absorbed in the payment of costs and fees. It does not appear that Sloan knew the value of the land at the time of the sale. He knew of the claim of the defendant, and that must have depreciated it in his estimation. It is a little remarkable, that this land should have been worth ten dollars an acre, upwards of twenty years ago, and should have been sold in 1841 for less than seven dollars an acre. But it is a satisfactory answer to the objection of a failure to disclose the prosecution of the attachment suit, that there was no trust, confidence, agreement, or any relationship between Sloan and John McCourtney, Jr., which imposed on him any such obligation. There was no fraud, nor any circumstance which can affect Sloan with bad faith. In the prosecution of a lawful demand, in a lawful way, he had fairly acquired a legal right, and no law imposed on him the necessity of disclosing the fact or accounting for his purchase, to any one.

The objection, that no demand was made on John McCourtney, Sr., before the institution of the attachment suit, cannot, with any propriety, be urged in this collateral proceeding. He might have appeared in the circuit court, at any time within three years, and contested the legality of the proceedings against him. Not having done so, no error in them can now be enquired into.

It is not pretended that the deed to complainant, Martin McCourtney, by his father, John McCourtney, in 1822, was, under the circumstances valid against the defendants, Sloan & Krepps. The view we have taken of the case relieved us from the necessity of determining as to the sufficiency of the certificate of acknowledgment of that deed, and no opinion is advanced on that question. The other judges concurring, the decree is reversed and the bill dismissed.