Traywick v. Gunn

LEVY, J. (after stating the facts as above). The appellant relies, for error in the court’s cpnclusion, upon the points, in effect, that: (1) On the face of the original judgment both of the defendants were adjudged principals, and not in the relation of principal and surety, and therefore the'judgment is conclusive of such fact; and (2) that although a surety, in fact, the appellee was not discharged, because the agreement to give time and to stay the order of sale in consideration of payment of part of the judgment was of no legal validity or effect. The relief against the execution, as in equity, was based entirely upon facts newly arising after the judgment. The plaintiff in the judgment agreed with the principal debt- or to release such debtor’s property from levy and lien and order of sale, and to give further day for payment, without the wish or consent of appellee, a surety. The agreement was actually adhered to and performed, and there was mutua) satisfaction of expectations created by the agreement. There was no redetermination of issues already heard and adjudicated in the original judgment. Upon the face of the original judgment the appellee stands confessed in the character of a surety. And it wag within the authority of the court, correctly deciding the case, as we think he did, to grant full relief by injunction, as done, of exoneration of the surety of all liability under the judgment. As proven, the suit, as well as the attachment, was commenced at the request of the surety, for his own benefit, as well as that of the plaintiff in the suit, under such circumstances as might reasonably have been ex *275 pected at tlie time would have insured tlie payment of tlie note from tlie principal and thus have relieved the surety altogether. And, as shown, the judgment of the court foreclosed the attachment lien and ordered sale of the property of the principal before resort by execution to so much of the property-of the surety as might be necessary to make the balance, if any, of the amount of the judgment. In legal effect the appellee Wars adjudged liable only in the character of surety. Such being the statutory rights of the surety, in the requiring of suit to be brought and in the enforcement of the judgment by levy, tttey could not be violated or disregarded by the plaintiff in the suit. Articles 6244-6248, R. S. 1925. For the surety’s legal right was in nowise at the mercy of any one’s discretion. There was a sufficient amount of property of the principal levied on, which, if it had been sold under the order of sale already timely in the hands of the sheriff for execution, would have made the full sum called for in the original judgment. All the liability of both the principal and the surety would thereby have been satisfied and become extinct but for the property’s being actually released and becoming unavailable to the lien in pursuance of an express agreement of release and the extension of time of execution. Hence the surety was thereby caused to lose and be defeated in what his legal right entitled him to claim, of having the judgment satisfied out of the property of the principal. Although -such agreement might be regarded as lacking sufficient consideration in its inception and while executory, yet the appellant would be bound by the execution of the agreement by actual performance, and he cannot now undo his act. The surety became entitled to specific equitable relief of exoneration in full, as has been fully- settled. Pilgrim v. Dykes, 24 Tex. 384; Parker v. Nations, 33 Tex. 210; Crook v. Lipscomb, 30 Tex. Civ. App. 567, 70 S. W. 993; Yeary v. Smith, 45 Tex. 56; Blocksom v. Bank & Trust Co. (Tex. Com. App.) 251 S. W. 1025; 5 Elliott, Con. § 3971; 32 Cyc. p. 216. The judgment is affirmed.