59 Kan. 255 | Kan. | 1898
The question in this case is, whether the defendant in error, Heath, was released from liability on a note for $3500, payable to plaintiff in error, signed by Alfred Johnson, A. E. Johnson, Chas. N. Johnson, and J. L. Heath, which at the time of its execution was secured by a mortgage executed by Alfred Johnson and wife on twelve hundred acres of land in Anderson County, by the failure of Redlon to have the mortgage recorded. Although there is some discrepancy between the statements of Heath and Redlon as to what transpired at the time the papers were executed, it is clear from Redlon’s own testimony that he knew that Heath was surety of the Johnsons as to a considerable part of the debt at least. The testimony of the defendant, however, was accepted by the jury as the truth, and must be so accepted here. This shows that Heath was surety of the Johnsons as to the whole amount of the debt; that this was known to Redlon at the time the note
The only legal proposition urged against the judgment is that a surety is not discharged by the mere negligence of the creditor; that there must be some affirmative act operating as a discharge. It is said that in this case the plaintiff took the reasonable precaution to submit the mortgage to an abstracter for examination before having it recorded, and that the failure to send it to the proper county was not his fault but that of the abstracter. '
■ It is familiar law that the neglect of the agent is
On the other hand, supporting the general proposition that a surety maybe discharged by the neglect of the creditor to preserve other securities, counsel for defendant in error calls attention to the following authorities: Watson v. Alcock, 19 Eng. L. & Eq. 64; Nelson v. Munch, 28 Minn. 314; Lumsden v. Leonard, 55 Ga. 374; Schroeppell v. Shaw, 3 Comst. (N. Y.), 446; Mingus v. Daugherty, 87 Ia. 56. In the case of Toomer v. Dickerson, 37 Ga. 427, it was held that a neglect to record a chattel mortgage on negroes, within the time required by law, discharged the sureties on the obligation given for their purchase. In the case of Crim v. Fleming, 101 Ind. 154, commenting on the conflict of authorities as to the soundness of the rule declared in Philbrooks v. McEwen, supra, it was said :
“But the case in hand is not within that rule, for here there was an express agreement to collect, and this makes an essential difference, for a breach of an agreement cannot be justly regarded as inaction or passive neglect.”
“For acts of mere passive sufferance, omission, and delay, the surety will not be discharged. And this rule is the more reasonable, inasmuch as a surety thus aggrieved has the remedy in his own hands ; and by various alternative modes of procedure may redress himself. He may convert the passive negligence and delay of the creditor into a positive wrong, by demanding that he proceed to the collection of his debt. If the requisition be not complied with, in a reasonably diligent manner, and the principal becomes insolvent, it will afford ground for relief.”
There would seem to be strong ground for holding a creditor, who takes, at the same time, the obligation of a surety and a mortgage on the property of the principal debtor, to such diligence as may be necessary to preserve his security on the property. The plainest dictates of ordinary prudence require that a mortgage on real estate should be promptly recorded. The testimony of Heath is to the effect that he was induced to sign the new note by the execution of the mortgage for his protection as well as for that of the plaintiff, and that this was talked over and clearly understood by the parties. No reason is apparent why Redlon should not be held to his positive agreement to record the mortgage without delay. Had he done so, the evidence shows that the mortgaged land was of sufficient value to have paid the prior incumbrances as well as his own. By his neglect to record his mortgage, other mortgages, sufficient in amount to absorb the entire property, took precedence and swept his security away. It is manifestly just that the plaintiff, whose negligent failure to comply with his positive agreement has occasioned the loss, should alone bear it.
Some comment is made on the special findings. It is claimed that they do not support the judgment;
The judgment is affirmed.