33 Tex. 210 | Tex. | 1870
Plaintiff complains that defendant, having a judgment against J. Wilkinson and James A. McNeill, as makers of a promissory note, and plaintiff as indorser, for three hundred and eighty-nine dollars and ninety cents, in October, 1859, caused a levy to be made upon three hundred and fourteen acres of land of the property of McNeill, one of the principal debtors, which land was worth and would have sold for six hundred and twenty-eight dollars, and afterwards, without the knowledge or consent of plaintiff, postponed the sale of the land, whereby tbe land was not sold, the debt not paid, and the principal became insolvent; and that defendant is seeking. satisfaction of the judgment from the property of plaintiff. Plaintiff requests a decree of the court de
As the defendant acknowledges the truth'of the plaintiff’s allegations, the only question before us is whether there is a. sufficient cause stated, for relief.
The statutes of the State- expressly declare indorsers of promissory notes as sureties only for the payment of the same, even after a judgment. (Art, 4789.)
In Burge on Suretyship, p. 206, the author says: “The surety is discharged when the creditor takes out execution against the principal and waives it.”
Wherefore the judgment is reversed and the injunction perpetuated. ' .
Reversed,
