Daniel v. Vinson

*441 WILLIAMS, Associate Justice. Appellant sued upon a note, in form joint and several, signed by R. A. Harvin, and by W. H. Vinson with the word “security” written after his name. Vinson had died before the institution of the suit, leaving a will by which appellee O. B. Vinson was made his independent executrix. The note was presented to her as such, and she endorsed upon it her approval and promise to pay it in the course of administration. Both defendants pleaded the statute of limitations, and Mrs. Vinson pleaded that her husband was only a surety, and had been released by the fact that plaintiff had allowed the note to become barred by limitation as to the principal, Harvin. She also asked, that in case judgment be rendered against her, a note which had been deposited by Harvin with plaintiff, as collateral security for that sued on, be delivered to her. More than four years elapsed between the maturity of the note and the institution of the suit, and the note was barred as to Harvin. The new promise by Mrs. Vinson as executrix did not affect Harvin. Ho such relation existed between her and him as made her act binding on him. The court below correctly held that plaintiff could not recover against Harvin. But we think it was otherwise with Mrs. Vinson. As independent executrix, she had power by her promise to suspend the statute before the debt was barred. Howard v. Johnson, 69 Texas, 658; Wood on Lim., sec. 190; 23 S. W. Rep., 536; 25 Id., 822. Having done so, she is not released by the fact that the note is barred as against Harvin, even if she is to be treated as surety. The principle is generally, but not universally, true, that anything which releases the principal will release the surety. Brandt on Suretyship, sec. 121; Dan. Neg. Inst., 1314, 1326. Thus the release of the principal by bankrupt proceedings does not release the surety. The release of the surety here, as in the instance cited, is brought about by the operation of law and not by an affirmative act of the payee of the note. Brandt on Suretyship, see. 126. The surety would be released in the same way, but for her own act in suspending the running of the statute in her favor. The debt was not barred when she made the new promise, and its existence was a sufficient consideration for the promise. Besides, it is shown that indulgence was granted her, the principal being wholly irresponsible. The fact that the collateral security had not been sold or sued on furnished no defense to this suit. Besides, it was shown that such note had been delivered back to Harvin by plaintiff’s attorney, and that this was done with Vinson’s consent. This evidence may have been objectionable as hearsay, but it was admitted without objection and is uncontradicted, and as its place might have been supplied by other testimony had objection been urged and sustained at the proper time, the court should have treated it as competent for the purpose for which it was offered. It is plain, that if the surety consented for the payee to deliver up to the principal the collateral security, the surety can not claim to be re *442 leased by that fact. Besides, no plea of release resulting from such fact was presented. The judgment will be reversed, and judgment will be here rendered in plaintiff’s favor against Mrs. Vinson as independent executrix, to be collected by execution against property of the estate in her hands, and in favor of the defendant Harvin. jReversed and rendered. Delivered May 2, 1895.