60 So. 654 | Miss. | 1912
delivered the opinion of the case.
The appellees filed their bill for the purpose of obtaining an injunction to stay execution under a decree and to have the decree cancelled.
The decree was obtained by appellant, Mrs. Mary J. Lindsey, against IT. T. Millsaps and the appellees, who were sureties on an injunction bond given by him, in the sum of two hundred dollars. H. T. Millsaps executed a deed of trust on certain property to secure to appellant, Mrs. Lindsey, the amount of the decree rendered against him'and his sureties. The bill charges that Mrs. Lindsey accepted the deed of trust, and thereby, in consideration thereof, agreed with IT. T. Millsaps to extend the payment of the amount of the decree until the maturity of the deed of trust; that the execution and delivery of the deed of trust, granting such extension of payment, was without the knowledge or consent of appellees, sureties to IT. T. Millsaps on the injunction bond, and that this was known to Mrs. Lindsey when she extended the payment, and that the appellees were released and discharged from the obligation in the decree when Mrs. Lindsey accepted the deed of trust and granted the extension; that Mrs. Lindsey had directed the issuance of
A demurrer was filed to the bill, and npon hearing of the same, in connection with the motion to dissolve the injunction, the court overruled both the motion and the demurrer. Then appellants answered the bill, and appellees excepted to the answer as insufficient. The chancellor sustained the • exceptions, and, in giving his reasons for doing so, stated in the decree that “the said answer does not aver that Annie Lewis and Webster Millsaps, or either of them, directed the execution of the deed of trust mentioned in the bill of complaint, or that they authorized the extension of the payment of the indebtedness mentioned in the bill of complaint to H. T. Millsaps.” The appellants declined to amend, and the injunction was made perpetual.
The rule in reference to a surety being released and discharged by reason of a transaction between the principal and the creditor, which has the effect of giving an extension of time, is stated in 32 Cyc., page 204, as follows: “Any contract upon a sufficient consideration, which, in its consequences may have the effect of giving an extension of time, discharges the surety. A stay.of proceédings on a judgment, or an execution, will discharge the surety.” ‘In the case of Harris v. West, 25 Miss. 156, Yerger, J., in delivering the opinion of the court, said: “This court has recognized the doctrine repeatedly that if a creditor, without the consent of the surety, enters into a contract with the principal, upon a sufficient consideration, to give him an extension of time for a definite period, or enters into any contract with the principhl, which in its consequences may have the effect of giving such an extension of time, the surety is released from his engagement. ’ ’ It was decided in Anthony v. Capel, 53 Miss. 350, that a release of the principal debtor, against whom, with the surety a joint judgment has been obtained, operates as a release of the surety.
Affirmed.
