77 S.W. 942 | Tex. | 1904
Certified question from the Court of Civil Appeals for the Third Supreme Judicial District.
The certificate shows that the bank brought this action upon a note payable to it, of date October 27, 1900, due November 4, 1901, for $1300, signed by Richard H. Harrison, M.S. Westbrook and Waller S. Baker. Harrison was dead and the suit was against Westbrook and Baker. Defendants answered that on the 4th day of November, 1899, a note for $1575, payable to the bank and due on the 4th day of November, 1900, had been executed by Richard H. Harrison, M.S. Westbrook, Waller S. Baker and James A. Harrison for the debt of Richard H. Harrison, on which all of the signers except the last named were sureties for him; and that, for a balance due on this note, and before its maturity, the note sued on was given by which the time of payment was extended for a year, and James A. Harrison was omitted as one of the signers. They also alleged that when the first note was given, Mrs. Mary S. Harrison, the wife of Richard H. Harrison, joined by her husband, executed and delivered to the defendants and James A. Harrison a deed of trust, set forth in the answer. This deed recited that Harrison and wife were justly indebted to the bank in the amount of the note of November 4, 1899, describing it, and were desirous of assuring and securing to Westbrook, Baker and James A. Harrison, sureties on the note, its payment at maturity, and conveyed to W.H. *248 Jenkins certain land, the separate property of Mrs. Harrison, with the condition that if "I shall well and truly pay said note and interest due thereon to the legal holder thereof when same shall become due this conveyance and all herein contained to be null and void; but in case of default in the payment of said note and interest or any part thereof when the same shall become due and payable it shall be the duty of the said W.H. Jenkins, trustee, at any time after such default, at the request of any legal holder of the note or notes unpaid to sell the property" in the manner specified, and with the proceeds arising from such sale, after deducting expenses and commissions, "the trustee shall pay the amount of principal and interest due on said note" and pay any balance to Mrs. Harrison. The deed also empowered the "holders and owners of said note," in case of failure, etc., of the trustee to act, to appoint a substitute trustee with the same powers, and closed with this declaration: "This instrument is executed to indemnify and secure said M.S. Westbrook against loss by reason of having signed as my surety the note hereinbefore described." Upon the facts thus alleged Westbrook and Baker made Mrs. Harrison a party to the action and prayed for a foreclosure of the mortgage for their protection. Mrs. Harrison urged a demurrer to this pleading, which was sustained, and, upon judgment being rendered discharging her and in favor of the bank against Westbrook and Baker, they appealed. The Court of Civil Appeals affirmed the judgment, and, pending motion for rehearing, certified this question:
"Did the execution and delivery of the new note herein sued on in lieu of the former note, under the circumstances stated, have the effect to release said deed of trust?"
The certificate properly sets forth at length the answer and deed of trust in question, but the statement given is sufficient for a proper understanding of our decision.
The arguments of the parties and the opinion of the Court of Civil Appeals develop but one point of contention, and we shall confine our attention to it. The position of counsel for Mrs. Harrison is that her land occupied the attitude of a surety in the original transaction, and that the change in the contract by extension of time and release of James A. Harrison without her consent effected a discharge of the land. Counsel for appellants dispute the proposition that the land stood in the relation of a surety for the debt, and contend that it was mortgaged only as an indemnity to them against loss by reason of their suretyship, and that the rule which holds a surety released by a change made, without his consent, in the contract by which he was bound, has no application. If this were the legal effect of the mortgage, the authorities cited by them would probably sustain the conclusion which they seek to establish: Way v. Hearn, 11 J. Scott (N.S.), 774; same case, 13 J. Scott (N.S.), 292; Mayer v. Grottendiek,
The question is therefore answered in the affirmative.