Williams v. Silliman

Henry, Associate Justice. Appellee sued appellant as administrator of the estate of T. J. Williams, deceased, charging that the deceased executed his promissory note to one Bryan, which appellee signed as his surety. The petition alleges that on two different days, both subsequent to the -execution and delivery of said note, the'deceased, for the purpose of securing appellee against loss on said note, executed to him two mortgages, upon real estate therein described. It further charges that Bryan after-wards brought suit on said note and recovered a judgment thereon against deceased as principal and appellee as surety for the sum of eight hundred and thirty dollars, to bear interest at the rate of twelve per cent per annum, which judgment, and the costs of suit amounting to $46.24, appellee subsequently paid off and discharged, and that on the 6th day of June, 1888, Bryan in consideration of such payment transferred and assigned the judgment to appellee. The petition charges that plaintiff presented his claim, duly verified, to the administrator and that it was by him rejected. He prayed judgment for the amount of his debt and for foreclosure of his mortgages. The defendant answered, and there was a verdict and a judgment for plaintiff for the amount of his claim and for foreclosure of the mortgages. The defendant appeals and insists that errors were committed as follows: 1. The jury erred in finding that not only the Bryan judgment but the cost of its recovery were secured by the mortgages, when in fact said mortgages were void because they were mere voluntary instruments given without consideration, each one being of subsequent date to the promissory note, and because the mortgages were not intended as security for the payment of the costs; and appellee having failed to pay the judgment until long after the death of his principal, could not acquire a lien on the land by paying off the judgment. 2. The court erred in assuming in its charge that the voluntary mortgage gave a valid lien. 3. The court erred in construing the mortgage to give a lien for the costs paid on the judgment. We find no error in the proceedings. The desire to indemnify his security against loss was a sufficient consideration for the execution of the mortgages. The costs as an incident of the debt were embraced by the mortgages. The judgment is affirmed. Affirmed. Delivered October 29, 1889.