Rogers v. Moore, 85 F. 920

Rogers v. Moore

85 F. 920 | 5th Cir. | 1898

After stating the facts as above, PARDEE, Circuit Judge, delivered the opinion of the court

The request made by the defendant below for instructions to the jury to find a verdict for the defendant, dismissing plaintiff’s claim with costs, and, in the alternative, that several propositions mentioned in the bill with reference to the discharge of the surety by reason of the extension of time to pay granted by the creditor to the principal debtor, or by reason of the delay and inaction of the creditor, be given to the jury, were none of them warranted by the evidence in the case. The record does not show sufficient evidence to warrant a finding that *923by reason of any extension of time granted to the principal debtor to pay, or that by any delay or inaction of the creditor, the surety had been discharged; and the instructions asked in that direction could have had no other effect, if given, than to mislead the jury from the real issues in the case. Where the law imputes payment on a debt, any surety, or any oilier person whose rights are affected by the imputation actually made, has sin interest to question the same, and the right is permitted in Louisiana. Rev. Civ. Code, art. 3060; Reusch v. Keenan, 42 La. Ann. 419, 7 South. 589. Where several notes given by the same debtor, growing out of the same transaction, and all due and payable, are secured equally by a mortgage, and there is a judicial foreclosure of the mortgage on sill the notes, the proceeds of the sale of the mortgaged property, if not sufficient to pay all the noies, should be credited pro rata on the several obligations secured. This is the case where the same creditor holds all the obligations (Eyle v. Roman Catholic Church, 36 La. 310), and particularly where third persons, such as sureties on some of the notes, are interested in the distribution of the proceeds of the mortgaged property. The proceeds of the sale of Rayside plantation, having been insufficient to pay the four notes remaining unpaid, and which were equally secured by the mortgage from While to Rogers, should have been apnlied pro rata, and not to the extinguishment of the one first due, to the prejudice of the others falling due at later periods; nor could such imputation be made to any particular note of the series on which there was a personal indorser,because, by the contract and in equity, each note was entitled to participate in the security, and there was no occasion to look beyond for the proper imputation of the proceeds. The contract in suit in the court below being written, the obligation of the surety cannot he extended by parol evidence, therefore, although the facts may be that the object and purpose of Rogers in requiring additional security, and the object and purpose of White, the defendant, in getting the indorsements on two of the notes, was to grant additional security outside of the mortgage, and that the purpose of neither ivas to divide securities with any surety who might indorse the first two mortgage notes; yet as John T. Moore is not shown to have been a party to any such understanding, his liability can only be measured by the notes that he indorsed, and these notes were mortgage notes of a series all equally secured by the same mortgage. The argument of counsel for plaintiff in error, Rogers, on this point, is ingenious, and appeals strongly in behalf of the equities involved: but we must hold in this action at law that only as John T. Moore bound himself shall he he bound. The verdict and judgment of the court below seem to he in accordance with the views herein expressed, and the judgment is therefore affirmed.