75 Mo. 310 | Mo. | 1882
This is an action instituted in the circuit court of the city of St. Louis, by plaintiff, as indorsee, against defendant, as indorser of a negotiable promissory note for $3,0G0.
The defendant in his answer substantially alleged that he indorsed the note in question on the day of the date, for the accommodation of R. J. Watson,'the maker, who ■ discounted the same in the St. Louis National Bank and received the proceeds; that the bank, as holder, took all necessary steps to charge defendant, as indorser, and sued ■defendant and the maker upon the note; that the action was dismissed as to defendant and judgment obtained against the maker; that on this judgment execution was issued ; that defendant thereupon informed the bank that he was merely an accommodation indorser upon the note, that the maker had property subject to execution, and requested the bank to levy upon the property of the. maker and thus satisfy the judgment; the bank accordingly caused a levy to be made upon a tract of land in St. Louis county, belonging to R. J. Watson and worth $5,000; also, upon some cord-wood belonging to R. J. Watson, worth $2,000; also, upon some shares of stock belonging to the same defendant, worth $2,000. The answer further says, that before the maturity of the note the plaintiff in this action, Priest, who is a brother-in-law. of R. J. Watson, well knowing that defendant John A. Watson was a mere accommodation indorser on the note in question, for the accommodation of R. J. Watson, who is a brother of defendant, together with R. J.Watson, conceived the fraudulent design of imposing upon defendant the payment of the note; that R. J. Watson, though, solvent, was somewhat embarrassed in his affairs, and to relieve him, Priest, on the 15th of February, 1876, purchased the judgment from the bank, paying the full amount and costs, and tak
Plaintiff demurred to this answer on the grounds that the facts constitute no defense, and that several defenses are improperly joined. The demurrer was sustained, and defendant refusing to plead further, judgment was rendered against him, from which he appealed to the St. Louis court of appeals, where the judgment was affirmed, from which he has appealed to this court.
The question presented by the above record is whether or not the holder of a negotiable note, after the liability of an accommodation indorser has become fixed, by notice of demand and protest, who obtains judgment against the maker of the note, and levies an execution issuing thereon, on sufficient personal property of the maker to pay the debt, and voluntarily releases the same to the maker, thereby
In the case of Weimar v. Shelton, 7 Mo. 237, it was held that an accommodation indorser is to be regarded in the light of a security, and as such is entitled to avail himself of any defense which would have availed the maker. In the case of Ferguson v. Turner, 7 Mo. 497, which was a suit against Turner, the indorser of a negotiable note, it was held that while mere negligence on the part of the pay.ee in not suing or in giving time to the principal debtor will not discharge a surety, yet if the payee has a specific lien on the property of the debtor sufficient to satisfy the debt, and voluntarily surrenders the lien or loses it by his own neglect, the security will be discharged. In the case of Smith v. Rice, 27 Mo. 505, which was a suit against Rice as indorser, it was held that “ the doctrine may be considered as settled in this State — where law and equity are administered in the same forum and in the same suit — that a judgment does not extinguish the relation of principal and surety ; (Morton v. Rice, 19 Mo. 263;) and the same causes that discharge a surety will discharge an indorser, (Bank of U. S. v. Hatch, 6 Pet. 250).” No citation of authorities is needed to establish the proposition that a surety is entitled to any specific security for the payment of the debt which the principal debtor may have given the creditor, or which by operation of law the creditor may have acquired, and if the creditor releases or destroys voluntarily ■such security, that the surety is discharged to the extent that such specific security would have gone to pay the debt.
The facts set.up in defendant’s answer bring the ease within the operation of the above principle, for they show that the creditor had seized and appropriated, by the levy '
We have been cited by respondent’s counsel, among others, to the following cases as sustaining the action of the trial court, viz: Clark v. Barrett, 19 Mo. 39; Page v. Snow, 18 Mo. 126, and Miller v. Mellier, 59 Mo. 388. In the first of the above cited cases it was simply held that “ the act concerning securities,” which required a creditor to commence suit within a given time after notice in writing was given him by a security requesting him to sue, did not apply to an indorser of a negotiable note. The case in 59 Mo. only holds that, after the liability of an indorser is fixed by demand and notice, the failure of the holder to proceed against the maker does not discharge the indorser. In the case of Page v. Snow, supra, where the maker and all the indorsers, except the first, were sued by the holder, a demurrer was interposed to the petition on the ground that all the indorsers should have been joined in the suit, and also on the ground that it should have been alleged in the petition that the note had not been paid by the indorser who had not been joined in the suit. In the disposition of this demurrer it was simply held that the holder of a negotiable note might sue all or any of the.parties to it, and that it was sufficient to allege that the note had not been paid by defendants. The principle involved in the above . cases has no application to the case at bar. Defendant in .his answer does not seek to be relieved on the ground that