51 Tex. 520 | Tex. | 1879
Lead Opinion
One of the propositions of plaintiff in error is thus stated: “ Where a creditor has personal security, and, in addition, has a mortgage or other collateral security for the same debt, the surety, upon discharging the debt, is entitled to have the collateral security assigned to him; and if the creditor loses it, by negligence or by design, so that the surety cannot be subrogated to it upon his discharging the principal debt, the surety is discharged to the extent of the collateral security so lost.” This proposition is supported by the authorities cited by counsel, and is regarded as established law.
Where the mortgaged property or other collateral security is intrusted directly to the creditor, he becomes a bailee, and is liable for injuries to the trust fund growing out of his negligence or misfeasance as such bailee. (2 Am. Lead. Cas., 5th ed., p. 401; 3 Lead. Cas. in Eq., p. 554; Brandt on Suretyship, sec. 384.)
Where, however, the property is placed, not in the hands of the creditor, but in the hands of a trustee, the common agent of the owner and the creditor, the creditor is not a bailee, and is not chargeable as such. In accepting the deed of trust, he doubtless assumes some new obligations; but so long as he discharges those obligations, he is not responsible
It follows from these views that the court did not err in refusing the instructions asked.
In regard to the charge as given, it is not, perhaps, a full presentation of the law of the case, but it is not believed that the parts complained of embody such error as operated to the material injury of the plaintiff in error. The postponement of the sale and the appointment of an incompetent agent to take charge of the stock, seem to be the main grounds of complaint against the trustee. In regard to the postponement, the evidence is that it was the act of the trustee at the request of the principal debtor, the owner of the trust property; and if, under the circumstances, it was wrongful, it was not, so far as the evidence shows, procured by the creditor Scott or assented to by him in advance. But, aside from this, it is not perceived that the charge, in so far as it may bear on this point, is subject to any further objection than that it is not sufficiently full and explicit. In so far as the charge bears on the liability of Scott for the neglect or mismanagement of the trust property by the trustee, it is believed to be substantially correct.
We see no reason to believe that the jury were misled by anything in the charge to the prejudice of the plaintiff in error. The judgment is affirmed.
Affirmed.
Rehearing
In overruling the application for rehearing in this case, we remark—
1st. That the assumption that there was a contract between Murrell and Scott, (whether it be intended that it was but a part of the original transaction in which the note sued on was given, or that there was a subsequent and separate contract between them,) by virtue of which Scott was bound to resort primarily to the deed of trust and to use diligence in having it speedily enforced, is, under the pleadings and evidence in the record, unauthorized.
2d. The assumption that Scott stood by and assented to the employment by the trustee of an incompetent person to take charge of the stock, is unauthorized by the evidence. The charges of the court have reference to the pleadings and the evidence in the case. Whether a creditor might not by his conduct, without any fraudulent intent, preclude himself from suing the trustee for mismanagement, and thereby discharge the surety, is a question on which we do not feel called to pass. The charge of the court relieved the surety to the extent of any loss growing out of the “misconduct of Potter, aided or abetted by plaintiff”; and, with reference to the pleadings and evidence, we repeat the remark that it was substantially correct.
3d. The surety, instead of paying off* the note and himself assuming the place of the creditor, has seen fit to rely on defenses based on the idea that the trustee, in the care and management of the trust fund, was but the agent of the creditor. If the result be one of some hardship as to him, that constitutes■ no sufficient reason for reversing the judgment.
Motion overruled.