Thomason v. CooperThomason v. Cooper
- Reporters:
- Before:
- Stone
Thе present bill was filed by John W. Thomason, appellant, against JohnW. Cooper, apрellee, to enforce an alleged vendor’s lien. It is among the uncontroverted facts in this case that when Thomason sold to Cooper the lands he now seeks to cоndemn, he executed to him a warranty deed of conveyance, and put him in possеssion ; that in part payment of the purchase-money, Cooper transferred to Thomason twо notes, payable to Cooper, and past due — one on one Phillips, and the other on one Thomas and Epps. The Phillips note he indorsed as follows: “1 indorse the within until pаid.” The Thomas and Epps note he indorsed : “ I indorse the within until the first day of March, 1863.” Both the pleаdings and proof show that these notes were delivered by Cooper, and receivеd by Thomason in payment. This land trade was made November 27, 1861. No suit was ever brought by Thomason оn either of said notes *563.against the maker. The bill in this case was filed April 16, 1874, and seeks to cоndemn the lands in Cooper’s hands for the payment of said notes and indorsements.
The construction of the indorsement of the Cooper note most favorable to Thomason, is, that’ it is an assignment, waiving suit to the first term of the court; and of the Thomas and Epps note, that it is а like waiver of suit until after March 1, 1863. Neither of the notes is commercial paper. Thе liability of Cooper, the indorser, was not and is not primary. It was a promise to pay, if the makers did not; not before, or otherwise. Hence, it could not be declared on as an original, absolute promise. To charge the indorser of such paper, suit must be brоught against the maker, and a return of execution “ no property found.” Code of Alabama, § 2112. But such suit, to the first term, may be waived or extended by the indorser, in writing signed by him. — Code of Alabama, § 2114. In this сase, suit against Phillips was waived, and suit- against Thomas and Epps was extended. The result was not to render Cooper’s liability absolute, without suit.—Bates v. Ryland, 6 Ala. 668; Woodward v. Harbin, 1 Ala. 104. It only gave to Thoma,son a longer time within which to sue. A waiver of suit to the first term, does not require the holder to sue to the next. He can sue the maker to insolvency “.at some time after the ■expiration of the periоd stipulated for delay.”—Lodor v. Gayle, 29 Ala. 412.
But when there is a waiver of suit to the first term, or, as in this case, an agreemеnt for indefinite waiver (such is the •effect of the indorsement of the Phillips note), is there no limit to the indulgence the holder may grant to the maker ? Let it be borne in mind that the liability of the indorser is not absolute, and only becomes so Avhenthe maker is sued to insolvency. Six years bars a suit on a promissory note, if pleaded; and under such issue the original bona fides of the •debt is an immatеrial inquiry. A suit after that time can not test the solvency of the maker, except at his uncоntrollable pleasure and option. The statute of limitations had perfected а bar against each of these notes before the present bill was filed. The liability of Cоoper on the notes had never been made absolute, and at that time, never сould be,, without the indulgence and aid of the makers of the notes. We think-the indorsee has waited too .long in this case, even if the present suit was a direct proceeding to fix thе liability” ■of the indorser, by suit against the makers. But the case ^against complainant is even strоnger than this.
*564To maintain a bill to enforce vendor’s lien, there must be a debt due to the cоmplainant, contracted in the purchase of the land, still unpaid, and which the purchaser, either at the time, or at some prior date, was liable to pay as a primаry debtor, without condition.—See Driver v. Hudspeth, 16 Ala. 348; Relfe v. Relfe, 34 Ala. 500. Not necessary in all cases that he should be liable tо a suit and recovery at law, when the bill is filed. But there must have been a time when he was. Coоper never was liable to a suit and recovery at law on these notes; and after the long delay, we have adverted to above, be never can be. The consequence is that this bill, in this feature of it, is entirely without equity.
It is averred in the bill that in negotiating the purchаse, Cooper defrauded Thomason by representing that these notes were goоd, when they were not. This is denied in the answer, and there is not a particle of evidence in support of it.
In what Ave have said we neither affirm nor deny that the complainant would be entitled to relief in this ease, if it was shown that Cooper’s liability had been made absolute, by suit, judgment and ‘proper return of execution against the makers of the notes. The wants of this case do not require us to decide that question.—See Grigsby v. Hair, 25 Ala. 327; Prince v. Bates, 19 Ala. 105; Coster v. Bank of Georgia, 24 Ala. 37; Martin v. Lundie, 6 Ala. 427; Bunkley v. Lynch, 47 Ala. 210; Camire v. Tichnor, 26 Ala. 571; Dennis v. Williams, 40 Ala. 633.
Decree of the chancellor affirmed.