Womack v. Davidson

LEVY, J. (after stating the facts as above). It is insisted by appellant that as the -evidence showed affirmatively and without dispute that he acquired the note in duo course of trade as an innocent purchaser for value before its maturity, a judgment should have been rendered in his favor against B. W.'Nelson, W. M. Davidson, and J. R. Davidson. Appellant was awarded judgment on the note, with foreclosure • of the chattel mortgage lien on the crop, against W. M. Davidson only. It is conceded in the brief of appellees that appellant should have judgment against B. W. Nelson, the original payee, and who indorsed and guaranteed the note to appellant. A judgment in favor of appellant against J. R. Davids on seems to have been denied upon the ground that as J. R. Davidson was, as found by the jury, a surety, only on the note, then the surrender by W. M. Davidson to B. W. Nelson of the automobile held under mortgage as security for the debt operated to release J. R. Davidson as the surety on the note. The general rule is that a surrender by a. creditor of any security held *1109 by Mm discharges the surety. Machine Works v. Templeton, 82 Tex. 443, 18 S. W. 601; Kiam v. Cummings, 13 Tex. Civ. App. 198, 36 S. W. 770. In view of the evidence, though, that rule would not have application to appellant Womack, suing as he does as an innocent purchaser and owner of the note before maturity. It does not appear that ¡appellant Womack agreed or consented to the ■surrender of the mortgaged automobile to B. W. Nelson. It was ±s. W. Nelson, it appears, who agreed with W. M. Davidson for the surrender of the automobile. At the time of this agreement between B. W. Nelson ■and W. M. Davidson for the surrender and release of the automobile, the appellant Wo-mack, and not B. W. Nelson, was the owner of both the note and the chattel mortgage securing it. B. W. Nelson was not authorized by appellant to make or act for him in making any such agreement with W. M. Davidson. Neither did appellant, as it appears, agree or consent with W. M. Davidson that he might surrender the automobile to B. W. Nelson, or any one else, in discharge of any indebtedness due. Therefore there was not, as against appellant, any legal release of the ■automobile from the lien of the chattel mortgage. Consequently, it cannot be held in this record that appellant Womack has by ¡agreement or consent so dealt with the automobile as to release or legally affect it as security or part security for the note. It follows that J. R. Davidson is not injured •or affected as a surety on the note. At the time the appellant purchased the note, his right in the note and security therefor became legally fixed, and it does not appear that appellant by act or agreement altered such legal rights up to and at the time of filing the suit. The mere fact that appellant •did not sue to foreclose the chattel mortgage lien on the automobile did not operate to release J. R. Davidson, the surety. Erwin v. Powder Co. (Tex. Oiv. App.) 156 S. W. 1097; Dillard v. Chandler (Tex. Civ. App.) 157 S. W. 303. Judgment should therefore, it is concluded, have been entered against him for the debt sued for. If J. R. Davidson was entitled to a remedy over and against B. W. Nelson, by reason ■of the agreement between B. W. Nelson and W. M. Davidson relating to the surrender of the new automobile, still his pleadings do not seek any remedy over and against him. B. W. Nelson did not recover a judgment over and against J. R. Davidson as surety, and that conclusion of the court is sustained. The judgment is reformed so as to award judgment in favor of the appellant against B. W. Nelson and J. R. Davidson for the .same amount as awarded against W. M. Davidson, and as so reformed the judgment is affirmed in all respects against all the ap-pellees. The appellee J. R. Davidson will pay all costs of the appeal.