Saline County v. Buie

Hough, J.

On the 15th day of August, 1868, Thomas M. Smith, as principal with the defendants, D. D. Buie, Samuel Yates and Zebman Smith, as sureties, executed to the county of Saline, for the use of the general fund, and the swamp land fund, a bond for the sum of $1,000, payable on or before the 31st day of December, 1868. At various times prior to the institution of the present suit, payments were made on said bond, aggregating the sum of $864, and this suit was instituted on November 20th, 1873, to recover of the sureties the balance due thereon. Smith was not served and Yates made default. The defendant, Buie, filed a separate answer, alleging that on the same day on which the bond sued on was executed, Thomas M. Smith, the principal therein, for the purpose of securing the payment of said bond, executed and delivered to the County of Saline, a mortgage on two hundred acres of land, conditioned that, in default of payment of either principal or interest, the sheriff of the county should, without suit, proceed to sell the said mortgaged premises. That, on the 10th day of February, 1870, the County Court of Saline County, by an order entered of record, without the knowledge or consent of said defendant, Buie, released from the operation of said mortgage, one hundred and twenty acres of said land, and that said defendant was thereby released and discharged from all liability on account of said bond. To this answer the plaintiff filed a demurrer, which was sustained by the court, and final judgment rendered thereon against said defendant.

We perceive no error in the judgment of the Circuit Court. The demurrer was properly sustained. Conceding that the County Court had authority to release a portion of the mortgaged premises, which we do not decide, the defendant could not complain, unless he was injured thereby, and he failed to allege in his answer any such injury. For aught that appears in the pleadings, the remaining portion of the land mortgaged may be amply sufficient to indemnify him. A surety is entitled to the *65 benefit of all securities field by tfie creditor for tfie payment of tfie debt of tfie principal; but when tfie creditor surrenders or releases a portion only of such securities, tfie surety is not absolutely discharged, hut only to tfie extent to which fie is thereby actually injured. If tfie securities retained by tfie creditor are sufficient to pay tfie debt, tfie surety is not injured and cannot- complain.

Tfie judgment of tfie Circuit Court will fie affirmed.

The other Judges concur, except Judge Sherwood, absent.

Affirmed.