McKamy v. McNabb

97 Tenn. 236 | Tenn. | 1896

Wilkes, J.

This is a suit upon a note against the principal, A. MeNabb, and bis sureties, N. Me-Nabb and J. A. Greene. There was judgment in the Court below against all parties for the amount of the note and interest, and the surety defendants appealed and assigned errors. The cause has been heard by the Court of Chancery Appeals and the decree of the Chancellor affirmed, and the same party defendants have appealed to this Court and assigned substantially the same errors as_ have been passed upon by the Court of Chancery Appeals. The defense made by the sureties is that on maturity of the note an extension of one year’s time was granted the principal upon, the note, which had the effect to release them in law and equity from liability upon it. There is no question but that the extension was granted. It is claimed by complainant that it was done with the assent and approval of the sureties. The sureties deny this, however, and the Court of Chancery Appeals has not passed upon this question of fact. That Court finds, however, that there was no legal consideration for the extension, and, hence, no valid agreement to that effect. It appears from their finding that wlffin the note fell due the principal defendant, A. MeNabb, paid, within the three days of grace, sixty dollars, the legal interest upon the note, and in consideration of delay for a year, he paid the further sum of thirty-six dollars, and it was held that this was usury, and not a legal consideration for the delay, and there was, therefore, no valid, binding agreement for delay. This is assigned as error. We think it is not error. Delay granted or promised upon a usurious consideration is not based upon a valid, enforcible contract, and will not serve to release the sureties. Howell v. Sevier, 1 Lea, 360; Wilson v. Langford, 5 Hum., 320. It is said that the payment, both of the sixty dollars and thirty-six dollars, was before the maturity of -the note, and must be treated therefore as a payment on the principal, and, therefore, a sufficient consideration for the delay. This is based on the idea that payment, being made before the three days of grace has expired, is, therefore, before maturity. We think this is not true, and the defense too technical for any real merit.

Daring the progress of the cause, defendant Greene, one of the sureties, died. His son, Luther Greene, went before the County Court and had himself appointed special administrator to defend this suit, and for no other purpose, and the order of Court appointing him so recites. He was brought before the Court as such administrator, and filed an answer and made defense without objection. In the Court of Chancery Appeals he assigns thiü action as error, and insists that the appointment, being limited to a special purpose, was void, and the revivor against him as administrator was unauthorized, and would not support a decree or judgment against his father’s estate. No such objection was made in the Court below. It appears that the said Luther Greene was the only heir and next of kin of the deceased, J. A. Greene, and that he left no widow.

In the case of Jordon v. Polk, 1 Sneed, 428, it was held that such limited administration may be granted, either as to certain specific effects of the deceased or for a certain specific purpose — such as filing a bill or carrying on proceedings in chancery— and if such limited administrator is made a party to the' suit, the estate of the deceased is thereby properly represented, and a decree against such limited administrator will be binding on a general administrator, but will not prevent a grant of general administration, and the two administrations may well subsist together. See, also, McNairy v. Bell, 6 Yer., 302; Smith v. Pistole, 10 Hum., 205; Crozier v. Goodwin, 1 Lea, 368; Pritchard on Wills, Sec. 564.

We can see no error in the decree of the Court of Chancery Appeals, and it is affirmed with costs.