Summary
ArrEAL PROM CRAWFORD CIRCUIT COURT.
This was an action of debt brought by Ridonhour, plaintiff below, against Wm. E. tiawkins, administrator, and Nancy Blackwell, administratrix of Richard Blackwell, deceased. The suit was brought ou a note for $400, given to tue pliintiff by Isaiah King, Thomas I. Veoch and lllchard Blackwell, bearing 10 per cent, interest from 'date, payable on or by tue 1st of March 1830, and daLed 19th November, lc88. At the May term, 1849, the defendants flic the statutory plea, and the parties went to trial. The plaintiff, Riden-hour, offered in evidence the note sued on, and the letters of administration granted by the clerk of Crawford county to the appellees as administrator of Richard Blackwell, dated, 23rd December 1830, and here cloced his case. Thi rcupon, the defendants offered in evidence, on their part, the notice of grant of letters of administration, signed by Wm. E. Hawkins, administrator, alone, stating that the undersigned had obtained from the clerk of Crawford County Court, letters of administration on the estate of Richard Blackwell, requiring all persons indebted to said estate to make immediate payment, and those having claims against the estate to present them within three years, or they would be barred. The affidavit of E. L. Edwards, publisher of the .“Jefferson Enquirer,” slates that this notice was published in his paper, first, on the 23rd of January, 1840, and thereafter for three weeks, on the 30th January and 6th and 13th February. G. P. Wyatt was then, introduced as a witness, whose testimony is fully set out in the hill of exceptions, the substance of which is, that Isaiah King was largely indebted ; that some judgments had been obtained against him; that one Baker, of Montgomery, had brought suit against him for some nine hundred dollars, principal, and that the petition had been served by witness while sheriff of Gasconade : that one McKenney, had brought suit against him for about this amount; that witness, Ridenhour, and R.M. Wyatt, all being the- intimate friends of King, went to him and advised him to take his property to Louisiana or Mississippi, sell it for the best price he could, and pay his debts, and if he could not pay them all to pay pro rata. Witness said he believed that King’s property would not have paid more than two-thirds of the judgments obtained and tlie debts then sued upon, He further said he was not certain that King would apply tlie money to the payment of his debts, but believed that Ridenhour had implicit confidence in King, that he would come back and pay his debts as far as his money would go. He further states, that King was indebted to his sister-in-law, Mrs. Lowry, about $250; to himself about $100, and to his brother, R. M. Wyatt, about $100, when they advised him to go. That there was a negro sold, prior to King’s taking away his property, under execution against King, and that Ridenhour purchased the negro at constable’s sale, King having furnished him the money to do so ; which lie gave up to King a short time before he left, and he took her off with the rest of his negroes. That King did not take his family at that time, but returned in some six or eight months after he left and staid at home some throe or four months and then went away again, and some three or four months after King left the second time, his family left, and he has never resided in Gasconade county since. That King did not pay any of liis debts on his return, and knows that the McKenney and Baker •debts, Mrs. Low-ry, R. M. Wyatt and himself, were never paid. King left a large amount of notes and accounts with one Thomas L. Yeech to collect for him, and Yeech said to witness that he had collected all the notes and accounts except a small amount. (The declaration of Yeech was objected and excepted to by the plaintiff.) Witness further said, that Ridenhour had sued Yeech,-■one of the securities, obtained judgment and had execution, but made nothing, as Yeech was insolvent. That in 1845, Ridenhour asked witness if he believed the money could be made out of Blackwell’s estate, or whether he believed it would be barred by limitation, and witness told him that he did not know, but that he had better advise w’ith Mr. Scott of Potosi, as he was an old and experienced lawyer. Here the case closed, the foregoing being all the evidence offered on either side.
At the instance of the plaintiff, the court gave to itself, silting as a jury, the following instructions : 1. That to enable the defendant to set up the bar of three years, they must show that within thirty days after the grant of letters, they gave the notice required by law to all'creditors, and that the commencement of publication in the newspapers, after the expiration of the thirty days, is not sufficient. 2. That said notice to be legal, should be signed by both the administrators, and if the court find it was signed by one administrator only, it is in law no notice at all. 3. That the commencement to publish the notice in the newspapers thirty-one days after the grant of letters, will not operate as notice to the plaintiff. 4. "That in order to entitle the defendants to be discharged, it must appear that the plaintiff either extended the time of payment by a legal and valid agreement, founded upon a valuable consideration, without the knowledge of tire security, or that he, without the knowledge of the security, released property upon which the lav/ gave him a lien ; but on the contrary, if the plaintiff honestly advised the principal to lake his property to the best market, sell it for the best price, and return and pay his creditors pro rata, with the proceeds, that such a transaction would be fair and legitimate, and would not be injurious to the present defendant’s intestate estate.
The defendants asked the following instructions, which were, refused : 1. That tlie omission to publish the notice to creditors of the grant of letters within thirty days, does not prevent the operation of the statute of limitations ; it merely postpones the operation of the statute for the length of time the omission continued. 2. That if the court,- sitting as a jury, believes from the evidence, that Ridenhour, the plaintiff, advised King, the principal in the note to remove his property from the State, and assisted him in doing so, that they thereby perpetrated a fraud upon the security in the note, and precluded himself from recovering against the securities. 3. That the notice to creditors being signed by Hawkins alone, does not vitiate the notice, 4. That the security of King had an interest in having King’s property retained within the jurisdiction of the courts of this State, and if the jury believe from the evidence, that Ridenhour assisted in removing his property from this State, he has thereby diminished his chances for making the debt from the principal, and has thereby released the securities.
The court found a verdict for the plaintiff, upon which judgment was rendered, and the defendants prayed an appeal, and have brought the case to this court.
From tke instructions given and refused, it is manifest that the Circuit Court was called upon to decide the following points: 1. Whether the notice signed by the administrator alone, -when there was an administratrix also, is any notice at all. 2. Whether, regarding it as a notice, the commencement to publish it thirty-one days instead of thirty after the grant of letters, does not deprive the administrators of setting up as a bar, the special limitation of three years. 3. Whether the acts of Ridenhour, under the circumstances, discharged the surety.
1. Upon the first point, it is insisted that the law laid down by the court, is correct. Where there is more than one executor or administrator, the law requires that a majority shall join in receipts and discharges, otherwise they shall be void. Administrators, art. 2, § 51, Stat. 1835. Now, one is not a majority of two, therefore where there are but two administrators, they must both join to satisfy the statute, and render receipts and discharges valid. Why should both administrators, where there are only two, be required to sign, in order to make a valid discharge in fact, and both not be required to sign a notice, which, when published, is to operate as a discharge in law. In pleading, the rule is, that all the administrators must join. Hunt v. Kenney, 2 Penn. 721; Bodle v. Hulse, 5 Wend. 313 ; Ohitty’s Pi.
2. Upon the second point, the court laid down the law correctly. In the instruction given for plaintiff by the court, it is conceded in accordance with the opinion of this court, in Montelius & Fuller v. Sarpy, 11 Mo. R. 237, that it would he sufficient, had the publication of the notice to creditors been eom-menced within thirty days after letters granted. The point is, that it was too late to commence after the thirty days had expired. In the computation of time, the English rule (which is also adopted in some of the courts of this country) is, that where an act is to be done within so many dajus after a specified fact, the day of the fact is included. Starkie’s Ev. 1399, title Time; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlins, 3 East, 407; Arnold v. United States, 9 Cranch, 104 ; Pierpont et al. v. Graham, 4 Wash. C. C. R. 232. But perhaps the modern rule, is to exclude the first day and include the last. The letters were granted 23rd December, 1839, and as December has 31 days, if you include the first day, the 30 days expired on the 21st January, 1840, if you exclude the first day, the 30 days expired on the 22nd January, 1840. The publication of notice (if it can be regarded as such) was not commenced until the 23rd January, two days too late by the Euglish rule and one day too late by the modern rule. If the administrator could delay one day, he might five, and if five, then ten, twenty, one hundred, or any greater number. The following among many other cases turned upon the point, that a particular thing to be done was too soon or too late by one day. Castle et al. v. Burdett et al. t Term R. C23; Lester v. Garland, 15 Yesey, 246 ; Glassington et •al. v. Rawlins et a.l. 3 East, 407.
3. Upon the third point, it is proper to refer to the 4th instruction of plaintiff and the 2nd and 4th of defendants. It will be perceived, that the defendants put their right of discharge upon the ground that the plaintiff advised King to remove his property from the State, and they asked the court to declare the law that the advice was a fraud in the fact of the attending circumstances which showed that the advice was for the benefit of the surety. The evidence is that King was greatly indebted. Judgments had been already rendered' against him and suits had been instituted against him which would shortly be' reduced to judgment: that his property would not pay more than two-thirds-of the judgments rendered and the debts sued on — that G-. P. Wyatt, R. M. Wyatt and Ridenhour, all being the intimate friends and likewise creditors of King, go to him, tell'him to take his property to Louisiana or Mississippi, sell it for the best price and pay all his creditors pro rata. There is no evidence of fraud or bad faith in this. They saw that others were before them ; that King’s property would soon be swept away by executions on other debts and they be cut out, and they advised him to do an act which would enable him. to put them on an equal footing with the other creditors. This was certainly for the benefit of the surety. The other creditors of King might have complained of this advice, but Blackwell could not. It would have been useless for Ridenhour to have attempted to make anything by suit, because King’s property would have been entirely consumed by the other creditors before he could have gotten judgment. The date of this transaction is not given by the witness, and therefore laches cannot be made out against Ridenhour. If he was tardy in suing King, it was the province of Blackwell or his administrators to hasten him by notice in writing. As between creditors and surety, there is no obligation of activo diligence by the creditor against the principal. The People v. Jansen, 7 Johns. R. 889. Nor will mere delay by the creditor, in calling on the principal, discharge the surety. Trent Navigation Co. v. Harley, 10 Bast, 34, and notes to new edition; Peel v. Tatlock, 1 Bos. & Pul. 419 ; Ferguson v. Turner, 7 Mo. R. 496; Nichols v. Douglass & McCulloch, 8 Mo. R. 49. It cannot be pretended that Ridenhour made any agreement by which he tied his hands, because he made no agreement, but merely gave advice, and as to the fact, which the defendants in their 2nd and 4th instructions ask the court to find, to-wit: that Ridenhour assisted King to remove his property, nothing of the sort appears in the evidence. The witness stated that Ridenhour purchased, at constable’s sale, one of King’s negroes, with King’s money, and gave her up to him a short time before he left, and he took her off with the rest of his negroes. It does not appear that any importance was attached to this fact in the court below. No instructions were asked on either side, nor was the court called upon in any other manner to say what this fact amounted to, and therefore this point cannot be raised now for the first time, because this court will only-review the points decided by the court below. Steamboat Thames v. Brskine & Gore, 7 Mo. R. 213 ¡ Cornelius et al. v. Grant et al. 8 Mo. R. 59. We may remark, however, that whether this purchase was before or after the advice given to King by the Wo Wyatts and Ridenhour, does not appear. Where there is nothing to the contrary, that presumption will be indulged, which will favor the opinion of the court below. It is not at any rate a matter of importance. Ridenhour acted as the mere friend and agent of King. By such agency, he acquired no lien upon the property, by which he could hold it for the payment of the note to which Beech & Blackwell were securities. The negro was neither pledged nor mortgaged to him. Had she been levied upon, while in Ridenhour’s hands, as King’s property, could he have held on in opposition to the levy upon the ground that King owed him ? I think not. He certainly could, however, if his agency conferred a lien. It is admitted, that if a principal give up a lien against the debtor, without the knowledge and consent of the surety, the surety is discharged. But what liens are meant? Judge Carr, in Chichester V. Mason, 7 Leigh, 256, says that the liens which, being given up by the principal, will discharge the surety, are “ existing, complete and perfected liens,” and he regarded even a fi. fa. delivered, as not such a lien, because it was not complete until-levied. Upon looking into the books for instances of sureties being discharged by the creditor giving up liens, we find that in Alcock v. Hill, 4 Leigh, 622; Chichester v. Mason, 7 Leigh, 244 ; Ferguson v. Turner, 7 Mo. R. 497 ; Baird v. Rice, 1 Call, 18, the execution was called in. In Ashby’s Adm’r v. Smith’s Adm’r, 9 Leigh, 164, an attachment levied was released. In State v. Hammond, S Gill & Johns. 157; Jones v. Bullock, 2 Bibb, 467; Rath-bone et al. v. Waner, 10 Johns. 587, the execution was stayed. I can find no case where a creditor, by becoming agent for his debtor, purchasing property for the debtor with the debtor’s money, and giving up the property, lost his remedy against the surety of the debtor to a pre-existing debt; nor do I believe such a case is in existence. Upon the whole, it is very evident that Ridenhour acted for the benefit of the surety. Nothing could have been made out of King, though the advice had not been given. It is not perceived that King’s forfeiting the confidence reposed in him by Ridenhour, and failing to pay any of his debts, altered the case. Ridenhour took the only course to get any part of his debt. He could not attach King, for it appears that he and the two Wyatts were the first to suggest to him to take his property to a better market and sell it, and pay all his creditors pro rata. In this way he hoped to realize something. If King remained, he knew he would get nothing.
4. It does not appear from the copy of the record in this case, made out for ■ my individual use, that there was any motion for a new trial. I have not seen the record filed in this court, but presume that my record corresponds with the record in court, as they were both made out by the same clerk. No motion having been made for a new trial, in the court below, the Supreme Court will not disturb the verdict for errors committed in the progress of the trial, or for erroneous instructions, therefore the judgment must be affirmed. Higgins v. Breen, Administrator of McNally, 9 Mo. R. 501 ; Stevens v. Sexton, use of Schenck, 10 Mo. R. 81; Rhodes v. White, 11 Mo. R. 633.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
