81 Me. 399 | Me. | 1889
The plaintiff, being accommodation indorser upon a demand note for $1000, became co-surety with the defendant upon another demand note, of the same promisors, for $1600; and, to secure himself on both notes, the plaintiff took from the makers of them a mortgage of one-sixteenth of the barkentine Addie E. Sleeper, conditioned to re-transfer the security upon payment of both notes. Titcomb v. McAllister, 77 Maine, 353.
It is claimed that a renewal of the first note since the mortgage
By the renewal, the plaintiff’s liability was not changed. He continued holden for the same debt after the renewal, as before; and needed the security as much then, as when he obtained it. The giving of a promissory note for an existing debt is, prima facie, payment of it; but the presumption is rebutted, when the creditor holds security; as the mere taking of a debtor’s note shows the want of sufficient motive, by the creditor, to forego his security. He cannot be presumed to have intended action, so prejudicial to his interest. Bunker v. Barron, 79 Maine, 62.
It is next contended that the security should be applied to both notes pro rata; and certain admissions of the plaintiff are relied upon to work out that result.
The mortgage recites: “I have this day received a bill of sale &c., as collateral security for the payment of said two notes.” The admissions amount to no more than that the plaintiff believed the security sufficient to save him harmless from both notes. He took the security primarily for his own benefit. The defendant has no right to it by contract; but only such equity as works equality among those of equal merit. This is not wholly the case of a surety who, gaining security for the debt, is held in equity to share it with his co-sureties, by applying it to the debt as far as it will go. It is the case of one attempting to indemnify himself from liability incurred for another’s accommodation; and it would be inequitable and unjust to strip the plaintiff of his Security for signing the first note, and compel him to share it with the defendant, as if a co-surety upon both notes.
By the payment of both notes, the plaintiff became the creditor of the makers of them, and of the defendant, for his moiety of the last one. The plaintiff then held his debtor’s property to secure several debts, upon one of which the defendant was liable as surety. Can a surety compel the creditor to apply security, taken from the debtor to secure several debts, to that debt upon which the surety is liable, in preference' to the other debts, or to apply it pro rata upon all of them ? In Wilcox v. Fairhaven Bank, 7 Allen, 270, the court held that he could not. The doctrines
The plaintiff had received the income of the security for several years prior to June 20,1885, when it was wholly converted into cash, by the payment of insurance for a total loss. Then the security changed its character, and became cash in the hands of the plaintiff, for which he is held to account. The not amount received by the plaintiff including interest to June 30,1885 was $778.58. The amount that he paid upon the first note with interest to that date was $1264.88, a sum larger than that received from the security, so that nothing remained to be applied to the last note,, and the defendant is liable to pay one-half of it.
It is contended that the plaintiff so dealt with his security as to have become guilty of its conversion, and then liable for its value; hut the evidence does not warrant a conclusion of that sort. No bad faith appears on his part; nor is he shown to have conducted unlawfully in regard to it. The defendant did not offer to redeem the security from the plaintiff and has no reason to complain of his management in the premises.
The plaintiff paid, Oct. 24, 1879, $1800.80 upon the note, whereon the defendant was his cosurety.
Judgment for plaintiff for $900.40 with interest from October 24, 1879.
