Whitehill v. Wilson

The revocation of a levy on the goods of one of two sureties, against whom judgment had been obtained, does not release his co-surety: as between themselves they are both principals, and the creditor was not bound to pursue his seizure of the goods of either, for the benefit of the other. A parol release of a judgment, is sufficient in equity, but a consideration is necessary to support it. It is not enough that it is in writing, if without a consideration. All contracts are either by specialty or paiol, there is no third class contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved. To leave to a jury the finding of a fact, without the color of proof is error.

IN ERROR. Error to the court of Common Pleas of Lancaster county. George Whitehill and James Whitehill, in his life time, on the 31st of May,eighteen hundred and nineteen,obtained judgment by award of arbitrators, against Samuel A. Whitehill, John Wilson, and James Boyd, for six thousand six hundred and forty-nine dollars, upon a bond, in which Samuel A., Whitehill was principal, va&John Wilson and James Boyd his sureties. On this judgment a fieri facias, issued to April Term, eighteen hundred and twenty-one, which was returned on the thirty-first day of December, eighteen hundred and twenty-two, “time given by the plaintiffs.” The court granted a rule to shew, cause why this execution should not be set aside, so far as relates to John Wilson, and also why all other proceedings against the said John Wilson, in said cause should not be stayed, and enjoined, or that an issue be directed, &c. Subsequently an issue was directed to try “whether by certain acts of James Whitehill, John Wilson, one of the three obligors in the bond upon which the said judgment was obtained, was not discharged from the payment of the said bond, and judgment.” This was that issue, framed upon a wager, between John D. Wilson, executor of John Wilson, who was then dead as plaintiff, and James Whitehill, Administrator of James Whitehill, who was also dead, as defendant. It appeared on the trial of the cause, that James Whitehill, the defendant’s intestate, on the seventh April, eighteen hundred and twenty-one, signed and gave to James Boyd, the following paper: “I, James Whitehill, hereby certify, that Col. James Boyd’s property is free from any levy on my account;” and on the ninth of April he signed, and gave to the sheriff the following paper which was filed of record with the execution against Samuel A. Whitehill, John Wilson, and James Boyd: “John Mathiot, Esq. — Sir, I wish you to advertise the property of Samuel Jl. Whitehill, and sell as soon as you conveniently and legally can. As he lives at the extreme edge of the county, you will please give such early and timous notice that it may have a general spread. The property of John Wilson may remain under levy, so as to make sale the first or second week in June next. The property of James Boyd may be considered as not levied on.” A witness testified: “It was some time in the year eighteen hundred and twenty-one, I was at Judge WhitehilVs house at Strashurg. Knowing that Mr. Boyd’s property was levied on by Mr. Whitehill, and that Mr. Boyd was in debt on his own account, I thought proper to state to judge Whitehill, that if he could release James Boyd with safety to himself, I thought -it would be proper and desirable —we had then a free conversation on the subject. I said this in relation to Boyd being bail for Whitehill, as he was likely to be pressed — we had a free conversation as to the circumstances of Boyd, the particulars of which I do not recollect. The object was to impress the propriety of this release, that is so far as I was concerned in il. Some time after this, perhaps six weeks, I was again at Judge WhitehilVs. He then introduced the subject himself, and said to me he thought he had got that matter fixed about which he was speaking to me in relation to the property of James Boyd. I believe that was nearly all; we were speaking in relation to t.he property of James Boyd. I believe I have related all my knowledge of what passed, which I can recollect with sufficientdislinctness to give testimony. I believe the amount of the conversation was that James Boyd was discharged. Cross examined— I do not recollect that he informed me he had a levy on Mr. Boyd’s personal property — nothing was said about a levy that I remember. This was some time in the year before Judge Whitehill died. I think he died in the spring of eighteen hundred and twenty-two-. A paper containing the levy was shewn to the sheriff, who said he thought it was the levy,but that he did not make it himself. His deputy testified; “I made a levy on the property of James Boyd; it was made in April, eighteen hundred and twenty-one, sixth April eighteen hundred and twenty-one. I levied on the personal property that was in the barn and the house; I did not see all the articles, I put them down as Mr. Whitehill told me. I think they would sell for three hundred dollars more or less. I did not see all the property levied on. Old Mr. Whitehill and Mrs- Boyd told me the things to put down. I did not get into one of the rooms at all up stairs. Cross-examined. — James Boyd came home while we were there; Boyd said if he had been there the levy should not have been made. Mr. Whitehill said it made no difference, he had to do it; he had to make a formal levy as he had made one on Mr. Wilson. Mr. Boyd said it would hurt his credit, they would push other debts. Mr. Whitehill said it might be kept a secret. There was no stranger about the house but the minister. Mr. Mathiot came, then we got upon our horses and went off. The property might be worth more than three hundred dollars but not at Sheriff’s sale. I do not know how many horses there were, I did not see all the horses. I remember a fine stud horse in the stable. I just put down nothing but what he told me. ” ■ The sheriff then gave evidence: “No other levy was made on James Boyd’s property that I know of. I levied on John Wilson’s property the same day. The defendants in the execution were Whitehill, Boyd and Wilson. Wilson’s property was advertised to be sold at three times; first sale to be on the 6thofMarch. I made a levy on the 6th of April, 1S21; that property advertised to be sold on the nineteen of January, eighteen hundred and twenty-two. This advertisement fixes the sale on the nineteenth of September, eighteen hundred and twenty-two. I did not sell on that day; I attended; Judge Whitehill was there andhis son Samuel A. White-hill and John Wilson. Some arrangement was made between the parties to stop the sale. In consequence of entering into a new bond this sale was stopped; a new bond for a balance on an old execution. It included the negro child and some grain. Sale was stopped on this compromise. I do not recollect any objection to the claim either at this time or any other. The return of “time given by the plaintiffs,” could not have been made before this. I have no recollection about the time of the return. Samuel A. Whitehill was sent for. I do not recollect as to his objecting to entering into the bond. I sold the personal property of Samuel Jt. Whitehill; John Wilson purchased considerable in for him, household and other property. The court were requested to charge the jury, 1. That the distinction between principal and surety does not cease after judgment obtained on the original security j and that as to subsequent transactions, equity views them with equal favor, and that the distinction is carried throughout from the first inception of the contract, to the final consummation and discharge of the same. 2. But should the court be of opinion that by the judgment obtained on the original security to August Term, eighteen, hundred and nineteen, the distinction between the principal and surety by law ceased, yet if the jury from the testimony of the Rev. Babbet, that the defendant’s intestate said “he thought he had got that matter fixed in relation to the property of James Boyd,” can fairly infer that the said intestate had released the said Boyd, that then the release of Boyd would enure to the benefit of both, as well in law as in equity, and the verdict should be for the plaintiff. 3. That if the jury believe the testimony of the Rev. Mr. Babbet, that the “amount of the conversation” with defendant’s intestate, was “that James Boyd was discharged,” then as well in equity as law, Wilson, the plaintiff’s testator, was also discharged and the verdict should be for the plaintiff. In answer to these points the court charged, A suit was brought by George Whitehill and James Whitehill, against Samuel Jl. Whitehill, John Wilson and James Boyd, on a bond dated the second April,1818, for six thousand five hundred and eighty-four dollars and fifty-three cents, payable on the first of April, eighteen hundred and nineteen; being part consideration for a tract of land purchased by one of the obligors, Samuel Jl. Whitehill. This suit having been arbitrated an award was rendered in favor of the plaintiff, on the thirty-first of May, eighteen hundred and nineteen, for six thousand six hundred and forty-nine dollars. An execution was issued on this award, and on a motion to set aside the execution so far as related to John Wilson, an issue was directed to ascertain whether in consequence of the act and assent done and given by the deceased James Whitehill, John Wilson was by law exempted and in equity discharged from the payment of the bond, and from all responsiblity created by it, and said suit instituted upon it. This is the matter you are to try. It is alleged on the part of the plaintiff that John Wilson and James Boyd, were sureties and not principals in the bond. In the case of an ordinary money bond as this is, there is no distinction on the face of it between principal and surety. Evidence is admissible to shew, who is the- principal and who the surety. By the evidence given in this case it appears that Samuel Jl. White-hill was the principal, and John Wilson and James Boyd sureties only. I had expressed an opinion that the weight of authority was in favor of the principle, that a judgment terminates the relationship between principal and surety; but our Supreme Court having decided that as to subsequent transactions, equity views them with equal favor, I think myself bound by this decision, and must under the authority of a supreme tribunal which has the right of reviewing and correcting the opinions of this court,lay it down as the law, that the distinction is carried throughout. As to the ground, relative to the levy on James Boyd’s property, it appears from the testimony that a levy had been made upon the personal property of James Boyd to the amount of three hundred dollars — that James Whitehill gave to Mr. Boyd the certificate, and sent to the sheriff the order which has been read in evidence; after the levy had been made,'the Rev. Mr. Babbet called on Mr. Whitehill, and the circumstances occurred which have been related to you in his testimony. We are asked to instruct you that if from the expressions of Mr. Whitehill, “he thought he had got that matter fixed in relation to the property of James Boyd,” you can fairly infer that the said intestate had released the said Boyd, or that the amount of the conversation with defendant’s intestate was, that James Boyd was discharged, his release would enure to the benefit of both sureties, and John Wilson’s testator would be discharged, and the verdict should be for the plaintiff. This would depend upon the subject to which the testator referred. If it were to orders he had given, relieving James-Boyd’s property from the levy, it would be a discharge to John Wilson to that amount, and he would be entitled to a credit for it on the judgment. If he had declared and meant to declare, that he had altogether discharged James Boyd, it would operate as a discharge to John Wilson to the same extent. If on the whole matter you ?re satisfied that under the law as laid down, by the acts and assent done and given by the deceased Jas. Whitehill, John Wilson was by law exempted and in equity, discharged from the payment of the bond, and from all responsibility created by it, and the suit instituted on it, your verdict will be for the plaintiff — otherwise for the defendant. The verdict being for the plaintiff, the defendant who sued out this writ of error, filed the following errors: 1. The court erred in charging the jury that judgment obtained against principal and surety in a bond, does not terminate the relationship between them; that as to subsequent transactions, equity views them with equal favor; that the distinction is carried throughout. 2. The court erred in charging the jury on the subject of the third point of plaintiff’s counsel, and in stating that if James Whitehill deceased, in the conversation with witness, referred to orders he had given relieving James Boyd’s property from the levy, jt would be a discharge of John Wilson to that amount, and he (John Wilson) would be entitled to a credit for it on the judgment, and that “if he (James Whitehill) declared and meant, to declare that he.had altogether discharged James Boyd, it would operate as a discharge to John Wilson to the same extent.” 3. Whether the acts and declarations of James Whitehill amounted to a discharge of Wilson or not, is a question of law for the decision of the court. The court therefore erred in allowing the jury to draw this inference — particularly in answer to plaintiff’s third point, allowing the jury from the evidence of the Rev. Mr. Babbet t, viz. (“he thought he had got that matter fixed in relation to the property oí James Boyd,”) to apply and put their own construction on the said evidence, and to decide and say whether it amounted to a release of Wilson or not, either in part or in toto, which was a'matter for the decision of the court alone, and ought not as in the conclusion of the charge to have been left to the jury. The court erred — 1st. In charging that the relation of principal and surety continued after the judgment. 2. In allowing the jury not only to decide the facts, but also to determine whether in law they amounted to satisfaction of the judgment of Whitehill, as to Wilson or a discharge of him from it; and in telling them that Wilson in any event was entitled to a credit to the amount of the property of Boyd, which was levied on. At most he could but claim credit as a co-surety, for but one half of that sum. 1st. He contended that the relation of principal and surety, was merged in the judgment: by the judgment all become equally bound, and were alike principals. By the judgment it becomes a debt of record, which was not open to inquiry, and examination, while unreversed, and could not be contradicted. To this point is the decision in the case Bay’s adm’r. v. Talmadge, 5 John. Ch. Rep. 305, where it is held, that after judgment, against principal and surety,there is an end of their relation,it is then too late to en-quire into this antecedent relation, this is merged in the judgment. They referred also to Sterling v. Marietta 8? Susq’hanna Trading Co. 11 Serg. <$’ Rawle, 179. Lenox et al. v. Front, 3 Wheaton, 520. The Commonwealth for the use of Bellas v. Miller’s adm’r. 8 Serg. ¿y Rawle, 452, did not interfere with this principle.' That was a case where the property of the principal was discharged from the levy of an execution, and it was held to discharge the sureties pro tanto. He referred also to Lichtenthaler v. Thompson 13 Serg. §* Rawle, 159. Geddis v. Hawk, 10 Serg. &y Rawle, 33, 39. Irvine §• Co. v. Kean, 11 Serg. & Rawle, 230, 3 Wheaton Rep. 156, in notes. 2. Wilson was not discharged by discharging the property of Boyd from the execution. Where two are bound jointly and severally a release of one will discharge both, but a covenant not to proceed against one-will not have that effect, although it be given on the receipt of part of the money due from him, nor will equity extend a release which does not amount toa technical release at law, beyond the clear intention of the parties, and the justice of the case. Rowley v. Stoddard, 7 John. Rep. 207, 6 John. Gh. Rep. 242. Here there is no evidence of any agreement between Whitehill and Wilson, nor was there any intention to discharge him. They referred also to Patterson v. Swan, 9 Serg. fy Rawle, 16, 20. Gro et al. v. The Hunting-don Bank, l Penn. Rep. 425,2 Showers, 394, 5 Bur. 272. Bucher v. The Commomoealth, 1 Rawle,-357. Contended that it appeared to be the manifest intention of White hill to release Boyd, of which the evidence was partly in writing, and partly by parol, and it was therefore the duty of the judge to submit the question to the jury, If the counsel for the defendant had wished for the charge of the court upon the written evidence, they should have framed a suitable point for that purpose, ¡Sled-well v. Evans, 1 Penn. Rep. 383. Rouvertv. Patton, 12 Serg. fy Rawle, 253. Munderhach v. Lutz’s adm’r. 14 Serg. 8? Rawle., 220. The release of one of two. joint debtors is the release of both. Whar. Dig. 247. pi. 3. Milliken v. Brown, 1 Rawle, 398. The jury fro.m the testimony were at liberty to decide that the discharge which Whitehill spake of, applied to this judgment, and if necessary that it was made upon a valuable consideration, or even that it was under seal, but the counsel for the defendant did not raise these points in the court below. If the judgment did extinguish the relation of principal and surety, a release of one joint principal is a release of all; but the judgment has not this effect. The Commonwealth for Bellas y. Miller’s Jldm’r. 8 Serg. fy Rawle, 452. King v. Baldwin, 17 John. Rep. 391, 393, 395, In the case of Bullet’s Ex’r. v. Wenston, 1 Munford, 269, “issuing a fi.fa. levying on the goods of a co-surety, and directing the sheriff to postpone the sale until after the return of the writ, and to leave them in the possession of the owner; who afterwards disposed of them was held to discharge the other surety. This of-course was after judgment, and it was not even made a question, whether the judgment in any way changed the relation of principal and surety? In the case of Leonardo. Prout, relied on fay the counsel of the plaintiff in error, was not decided on the ground of a judgment having been obtained, but upon a protest and notice of non-payment in a mercantile transaction, where promptness and punctuality are considered of so much moment. Here the endorser was fixed absolutoly for the payment of the money by the protest, and notice of non-payment. The reason assigned by Chancellor Kent, for hisi opinion, that a judgment merged the relationship of principal and surety, because ihc fact cannot be enquired into, is inconclusive; for if the surely is compelled to pay the money, he may recover it from his principal, or he will be entitled to an assignment of it. The question was placed upon the true ground by the Chief Justice in Sterling v. The Marietta 4’ Susq. Cam. 11 Serg. $ Rawle, 179. They referred also to Chitty on Bills-, 371, Whenever fora valuable consideration the creditor puts it out of his power to proceed against the principal, or in any respect increases or changes, the responsibility of the surety, without his consent, the surety is discharged.