Coffey v. . Reinhardt

Clark, J.: The lapse of three years protects the surety on a sealed instrument. Welfare v. Thompson, 83 N. C., 276. Although the bond is joint and several on its face it can be shown by parol that a party thereto is a surety. [511] The Code, §2100; Brandt on Surety, sections 29 and 30. When the suretyship does not appear upon the face of the bond, the surety must show that it was known to the creditor to obtain protection by the lapse of three years. Goodman v. Litaker, 84 N. C., 8; Torrence v. Alexander, 85 N. C., 143. When the suretyship is known to the original payee the surety is protected by the lapse of three years if the note is assigned after maturity, although the assignee takes without notice. Capell v. Long, 84 N. C., 17. Otherwise if it is assigned before maturity to one who takes without notice. Lewis v. Long, 102 N. C., 206. This sums up the direct authorities in this State. In the present case it is not controverted that the defendant is in fact surety on the bond, and that it was assigned to the plaintiff before maturity for value and without notice. Nothing else appearing, the plaintiff was entitled to recover. Lewis v. Long, supra But the Court was asked to charge that if the plaintiff received notice after assignment that the defendant was surety and notwithstanding delayed more than three years after maturity and after such notice to bring suit the suret}'is protected. In.refusing so to charge there was error. Whatever the form of the bond one who is in fact a surety thereon is protected by the lapse of three years after maturity. The exception is when the payee has no notice of the suretyship or assigns the bond before maturity and for value to one who takes without notice, of the suretyship. Here the plaintiff, after maturity .of the bond, received notice that defendant was surety, yet failed for more than three years to bring action. The reason that the surety would not be protected by the lapse of three years, to-wit, that the holder of the bond was not put on his guard to collect in that time because he did not have notice of the suretyship, or assigned it before maturity to one who took [512] for value and without notice, no longer applies. Ratione censante, cessat et lex. A somewhat similar case is where the holder or assignee of the instrument takes it without notice of the suretyship, but after learning that fact gives time to the principal. This releases 'the surety. 1 Brandt on Suretyship, section 32; Luman v. Nichols, 15 Iowa, 161; Wheat v. Kendall, 6 N. H., 504; Overand, Gurney & Co. v. Oriental Financial Corporation, 7 English and Irish Appeal Oases, 348. It is true the surety could give the holder written notice (pda timet to bring suit under The Code, sections 2097, 2098, and if the holder does not do so within thirty days the surety would be released. Cole v. Fox, 83 N. C., 463. But here the holder merely has verbal notice, not a (pda timet, of the suretyship. The plaintiff, fixed with the knowledge of that fact, delays for more than three years to sue. By reason of such laches such surety is protected by the lapse of three }Tears. Error.