127 Iowa 518 | Iowa | 1904
It is not questioned that tbe note in suit was executed by Warren Walker to tbe American Savings Bank, plaintiff’s assignor, “ as additional security to tbe bank for payment of any judgment that may be obtained ” in a pending suit in wbicb tbe bank was suing tbe Shaver Carriage Company for rent, and in wbicb two landlord’s attachments had already been issued, under wbicb property of tbe value of $3,500 bad been seized. It appears that tbe note and mortgage were executed in connection with a bond signed by tbe Shaver Carriage Company (by Warren Walker, secretary) and W. T. Shaver, as principals, and by Warren Walker individually, as security for tbe payment of any judgment that tbe bank might recover against tbe carriage company and W. T. Shaver in tbe action for rent. In tbe
It is to be noticed that in the bond above described, in connection with which the note and mortgage in suit were executed as a part of the same transaction, there was no stipulation as to the release of property on which levy had already been made, and which was then held blf the sheriff under the landlord’s attachment. The property thus levied upon and in the possession of tire sheriff was the property of the debtors, the carriage company and Shaver. Walker became liable only as surety. We find no authority in the bond, nor consent outside of the bond on the part of the surety, Walkei*, that the property thus levied on, and subject to be applied to the payment of any judgment rendered in the pending action, should be released. As the bank had, therefore, a lien on the debtor’s property, the effect of the release, of this lien was to discharge the surety, Walker, to the extent of the value of the property so released; and, as the value of the property released exceeded the amount of the claim finally established as against the principal debtor, no