Springer v. Toothaker

Hathaway, J.

The note upon which this action was brought, was signed by the defendant and H. P. Toothaker, who were legally holden thereon as joint and several promissors.

The defendant, however, was in fact, only the surety of H. P. Toothaker, and that was known by the plaintiff. Hence the defendant is entitled to all the benefits belonging to the character of a surety.

*384 The evidence reported does not authorize the conclusion that there was any such agreement between the plaintiff and H. P. Toothaker, to enlarge the time of payment, as would operate as a discharge of the- defendant from his liability as surety on the note. The defendant offered to prove that after the note became due, the plaintiff commenced a suit thereon, against H. P. Toothaker, the principal debtor, and attached as his, a large amount of personal property, and certain interests in real estate; that he prosecuted the suit to final judgment, on which he duly obtained execution, which he neglected’ to levy on the personal property attached, and ordered the officer in possession, by virtue of the attachment, to surrender it, which he did; that the equity of redemption attached, was, by the plaintiff’s direction, s^zed on the execution, by the officer holding it, for collection, and duly advertised for sale, at a time and place named, but that it was not exposed for sale; that the sale was postponed from time to time, and the attachment lost and abandoned, by the plaintiff’s order, and without the defendant’s consent, and that the equity of redemption was worth six hundred dollars, and would have sold for that sum, if it had been exposed for sale; all of which testimony offered was excluded by the presiding judge, and the question presented to the court is, whether or not it was properly excluded.

The defendant, the surety, is sued alone, and whatever would discharge the surety in equity, will be a good defence in law. Baker v. Briggs, 8 Pick., 128 -9, and authorities there cited.

The contract of suretyship imports entire good faith and confidence in the whole transaction. In equity, a creditor who has the personal contract of his debtor, with a surety, and has, also, or takes afterwards, property from the principal, as security for his debt, is to hold the property fairly and impartially for the benefit of the surety as well as for himself, and if he parts with it without the knowledge, or against the will of the surety, he shall lose his claim against the surety, to the amount of the property-so-surrendered. *385 The People v. Janson, 7 Johns., 337 ; Rees v. Berrington, 2 Vesey, Jr., 542; Law v. E. I. Co., 4 Vesey, 849; Baker v. Briggs, 8 Pick., 122 , second ed.; 1 Story’s Eq., sections 324-5-6.

Whon the plaintiff had recovered judgment against the principal debtor, his right had attached absolutely, to the property, which he had taken on the writ, and remained a fixed and permanent lien, for thirty days. In the matter of Cook, 2 Story’s R., 376, R. S., chap. 114, sec. 32 — and if he, voluntarily surrendered it without the defendant’s consent, he did so at the peril of discharging the defendant as surety for the amount thus surrendered.

Although the plaintiff was not legally bound to use active diligence in collecting the debt of the principal, and the surety would not be discharged by reason of his delay in the matter, and though the plaintiff might have discontinued proceedings against the principal debtor, which he need not have instituted, yet, it would be clearly inequitable to allow him to abandon an absolute lien or security upon the property of the principal, which he had obtained as the result of those proceedings, and to retain his hold upon the security for the whole debt. 2 Am. Leading Cases, 256.

The plaintiff was not bound at his own risk and expense, to seize and sell on the execution, the personal property attached when the title might be doubtful. Page v. Webster, 15 Maine R., 249.

But, as to the equity of redemption, the testimony offered and excluded, presents it as the property of the principal debtor, upon which the plaintiff had obtained an absolute lien for the payment of the debt, and which, without any risk or expense to the plaintiff, would have been sold for six hundred dollars, and appropriated for that purpose, unless e had interfered and prevented the sale.

He had no equitable or legal right, to the injury of the surely, (the defendant,) thus to surrender and abandon such security.

*386 The testimony excluded was legally admissible, and should have been received.

In addition to the numerous authorities cited in argument, see Edgerly v. Emerson, 3 Foster, N. H. R., 555; Adams’ Eq., 269 and 270, and the opinion of Tenney, J., in Fuller v. Loring, 42 Maine R.

As agreed by the parties, the action must stand for trial.