Mays v. Cockrum

Delany, J. Com. App. The only question in this case is whether the court erred in rendering judgment in favor of the administratrix of Sheffield. This is assigned as error, but counsel for the plaintiff in error refer us to no authorities; and, so far as we are aware, the question has not heretofore been presented to our courts of last resort. Counsel for defendant in error puts the case thus: “ When a mere surety in a joint undertaking dies, his estate, both at law and in equity, is absolved from the obligation, and the creditor must look to the other joint makers.” A nd for this he cites a number of the highest. authorities which fully sustain this proposition. See 1 Story’s Eq. Jur., §§ 162-4; Brandt on Suretyship, § 117; 9 How. (U. S.), 90; 15 Wall., 140; 49 N. Y., 385; 2 Daniel’s Neg. Notes, sec. 1298. The doctrine proceeds upon the theory that when one of the joint obligors dies, the death of one, at common law, releases his estate, and the obligation survives to the survivor.- When, however, the two obligors have both received the benefit of the consideration for which the bond or note was given, equity will treat the obligation as joint and several, and will hold the estate of the deceased obligor bound. But the mere surety has received no part of the benefit; he is under no moral obligation to pay. He is bound only so far as the law binds him. And as the law discharges his estate after his death, ' equity, finding no moral duty upon which it can raise an obligation to pay. discharges his estate also. The courts of the United States [354] and of many states, have carried the doctrine to this extent: that when two persons give a joint and several bond, one being surety, and the obligee took a joint judgment against both, he could not, after the death of the surety, enforce the judgment against his estate. See 9 How. (U. S.), 90. The courts of South Carolina have not folloxved this rule, but have held the estate of the surety liable, as if the obligation had been joint and several. See Smith v. Martin, 4 S. C., 149. And although xve have few or no decisions on the subject, the rule as laid down in South Carolina seems to have been folloxved in this state. The 5th section of the act of February 5,1840, is in these words: “ That the representative of one jointly bound with another for the payment of a debt, or for the performance or forbearance of any act, or for any other thing, and dying in the life-time of the latter, may be charged by virtue of such obligation, in the same manner as such representative might have been charged if the obligors had been bound severally as well as jointly.” Hart. Dig., art. 635; O. & W., art. 1594.1 We conclude that there is error in the judgment, for which it should be reversed and the cause remanded. Reversed and remanded. [Opinion delivered June 20, 1882.] Footnotes [1] Note by the Reporter.—This article is not carried into the Revised Statutes, nor is it to be found in Paschal’s Digest.