Robenson v. Tonn

STAYTON, Chief Justice. We concur in the holding of the court below that neither Theodore Tonn nor the county judge were necessary-parties to this action; and in the further holding that the bond given to-secure the faithful discharge of the duties of the guardian of the estates-of Theodore and O. J. Tonn was binding on the sureties as fully, in so far as the right of appellee is concerned, after the discharge of the guardian from further liability to his ward Theodore as was it before. The other questions arise on the following facts: In July, 1877, Jefferson Bassett was appointed guardian of the estates of Theodore and O. J. Tonn, and to secure the faithful discharge of his duties he executed a bond on which A. J. Roberson and B. H. Bassett were sureties. On March 16, 1881, there was in the hands of the guardian belonging to his ward 0. J. Tonn the sum of 82000, which, without compliance with law, he on that day loaned to the banking firm of Bassett & Bassett, composed of the guardian Jefferson Bassett and the surety B. H. Bassett. To evidence this transaction a certificate of deposit, payable one year after its date and bearing six per cent interest per annum, was executed to the guardian by the banking firm. On January 1, 1885, the guardian filed an account with his ward, which showed an indebtedness at that time to his ward’s estate amounting to $1882.45, which embraced interest on the certificate of deposit. On May 25, 1885, the guardian died without having restored this sum to his ward’s estate, and without leaving any estate other than partnership effects subject to the payment of debts. Three days after his death B. H. Bassett, the surviving partner and surety on the guardian’s bond, made an assignment, in the form required by the statute, of all the partnership property of the firm of Bassett & Bassett and of himself subject to forced sale, for the benefit of such of — 539 — the creditors of the firm and of himself as would consent to take under it and release him. The deed of assignment was signed by the assignees, who qualified under it and proceeded to administer the trust estate in accordance with the provision of the statute regulating assignments for the benefit of creditors. On the 26th of September, 1885, George Roberson was duly appointed guardian of plaintiff’s estate, and afterwards, on the same day, duly accepted of the assignment and presénted to the assignees an account properly authenticated against the estate of Bassett & Bassett for §1882.45 and interest from January 1, 1885, balance then due his ward, as per exhibit of guardian filed that day. The account was duly allowed by the assignees. Upon this claim two dividends were paid, which amounted to thirty-five per cent of the claim presented, and it is shown that dividends amounting to fifty per cent of the claim will probably be paid. Roberson, guardian, received from the assignees a dividend of thirteen per cent on the claim of his ward,- and the latter, after he became of age, through his attorneys received another amounting to twenty-two per cent of his claim. The court found that “the dividend of $414.10 was paid to plaintiff’s attorneys, Garrett, Searcy & Bryan, who thereafter paid the same over to plaintiff, said attorneys having full knowledge of all the facts concerning the assignment. Plaintiff also received through his said attorneys all of the first dividend above named, except amount reserved to meet court expenses of guardianship.” The inference from the record is that some further payment would be made from the assigned estate. This action was brought by the ward against sureties on his first guardian’s bond, and the court held that each of the sureties was liable for the full amount of the guardian Bassett’s indebtedness, less such sum as had been received from the assignees. The court further held that it Avas unnecessary to determine whether the assignment was valid as an assignment under the statute or at common law; for be that as it might, the “plaintiff has estopped himself from raising the issue by acquiescence in and accepting dividends under the assignment.” The court, however, did hold that on account of the separate sources of obligation resting on B. H. Bassett he was not released from individual liability as surety by reason of the fact that appellee had accepted under the assignment. The court gave two reasons for this holding: “1. Because that liability and the amount thereof, if any, at the time of the assignment, and for more than six months thereafter, was uncertain and contingent and not a provable claim in bankruptcy.” — 540 — Was it true that the claim was of such nature as could not be allowed by the assignees ? The claim which was presented and allowed was in amount the same as made the basis of the judgment in this case, and B. H. Bassett was liable for it as surety, as was he as a member of the firm of Bassett & Bassett. His dual liability existed from the moment his firm .received the money, for in the act of lending his principal committed a devastavit, and in the act of borrowing he became individually liable, notwithstanding .the firm of which he was a member, as between themselves, were jointly bound. We do not see wherein his individual liability was in anywise uncertain or contingent. Whether it would become necessary to resort to his individual liability to secure the debt may have been uncertain, but there was neither such uncertainty nor contingency as to his liability as would have precluded the allowance of every claim that at any time might be asserted against him as surety or partner. The second ground was “because his liability as surety is of a separate nature, and against himself individually, and was primarily a demand against his separate estate in the hands of the assignees in case it could have been and had been proved up, while the claim actually proved up and allowed by the assignees was against Bassett & Bassett and arose out of a copartnership transaction and was a demand primarily against the copartnership assets, and represented an amount which did not necessarily .and probably does not indicate the amount of B. H. Bassett’s individual liability.” It appears that all the separate estate of B. H. Bassett subject to forced sale passed by the assignment, as well as the partnership property, and that of the former more than sufficient to pay all sums due to appellee went into the hands of the assignees, but that notwithstanding this no •one solely an individual creditor of him presented a claim. All the property to which creditors of any class could look was placed subject to their demands, and if under an assignment it were true that the individual creditors of B. H. Bassett had a right superior to that of creditors of the firm to have satisfaction of their claims out of his separate estate, it would seem that this was a case in which such a right might and ought to have been asserted, if it was not. Ho such right, however, is recognized, for the separate estate of one partner is as fully liable for partnership debts as for his own personal obligations, although as between partners the firm assets constitute the primary fund for satisfaction of firm debts. The claim actually proved and allowed by the assignees on which dividends were received was identical with that on which the judgment in this action on the guardian’s bond is based. — 541 — In the one case as in the other the admitted liability to appellee shown by his guardian’s report of January 1, 1885, is made the claim; and for its payment all the property in the hands of the assignees was liable just as fully as though there had been one claim made with all technical precision on the suretyship of B. H. Bassett and another on the certificate of deposit. The claim presented to the assignees was as follows: “ Bassett & Bassett to Geo. B. Roberson, guardian of estate of the minor G. J. Tonn. “To amount of balance due the minor January 1, 1885, as per exhibit of Jefferson Bassett, former guardian, filed January 1, 1885, in County Court of Washington County, Texas, $1882.45, said amount bearing interest from January 1, 1885.” Although the amount was made up against the firm, both members of which were separately liable for the entire sum due, there is nothing to-show that the claim thus asserted was not the identical claim now asserted. The amount is the same, except as to some interest which rests on the holding that the guardian should be charged with a higher rate of interest than the certificate of deposit promised; it was made against a fund in the hands of the assignees, one part of which was as much subject as the other to its payment; and there is no evidence that the guardian who presented and had it allowed, or the assignees who allowed and paid dividends on it, had any knowledge Avhatever when the dividends were paid, that any liability on the part of the firm of Bassett & Bassett or of B. H. Bassett other that now sued on existed. As between appellee and the firm of Bassett & Bassett and B. H. Bassett it was but one debt, though evidenced by two papers, for which their partnership as well as separate estates were liable; the payment from either would satisfy appellee’s claim against both, and there would be no-equities to adjust, unless between the partners themselves or their representatives, however it might be paid. Under the obligation imposed on appellants as sureties on guardian’s bond, one of them, on payment by him of sum due to ward, would be entitled only to contribution from his cosurety; but when the money was loaned to Bassett & Bassett the surety Bassett, as between himself and cosurety on guardian’s bond, became a principal debtor, from whom the other surety, on payment of the debt, would be entitled to recover all he paid. B. H. Bassett became primarily liable to the ward—as to his cosurety a principal—having through the firm of which he was a member borrowed and had the benefit of the ward’s money, for which both sureties were liable. Having thus become a principal debtor, if he has been released, then his cosurety is as clearly released as would he be had appellee in some way voluntarily released the guardian whose sureties both were. — 542 — This is not a case in which a cosurety only has been released, but one in which, in effect, a principal has been discharged, whereby the right -of cosurety Roberson to subrogation, if he shall pay the debt, has been destroyed. It is very generally held that the discharge of a principal by the act of the law, as in cases of discharges in bankruptcy or under insolvent laws compulsory in character, does not discharge a surety, but this rule has no application to cases in which the discharge of the principal depends on the volition and act of -the creditor. “ The discharge of a principal which discharges a surety must be a discharge by some act or neglect of the creditor, and a discharge by operation of law, being as it is against the consent and beyond the power of the creditor, does not discharge the surety.” Looking to the facts, it seems to us that the claim of dual character of indebtedness by B. H. Bassett is based on distinctions which can have no bearing on the merits of the present controversy. It is true that B. H. Bassett was bound by the existence of two states of fact, but under each of these he was bound for the same debt, and a payment by him as principal or surety would discharge it. There can be no pretense that the claim presented to assignees, approved and dividends thereon paid, was not in form a claim sworn to be due from Bassett & Bassett, nor can it be denied that this was the very claim or debt for which the sureties were liable. If B. H. Bassett was discharged on that claim he is discharged in toto. If he is thus discharged then his cosurety is discharged, for B. H. Bassett, as between himself and cosurety, having become a principal debtor, his discharge defeats the right of his cosurety to subrogation, which can not be taken away from him without releasing him from further obligation. Under the findings of the court below we are relieved from consideration of the question whether a guardian may consent to take under an assignment and release the debtor on payment of only a part of the debt, for it appears that appellee after he became of age, with full knowledge of what had occurred under the assignment, received the dividends paid. It is not shown that any fact material for him to know was concealed from him or unknown to him, nor that any fraud was practiced to induce him to receive the dividends. If the guardian had power to bind him he is bound; and if the guardian had not power so to bind him his own act does. If he did not intend to be bound by his guardian’s act he ought not to have received the fruits of it, but should have repudiated it instead of receiving the dividends. Having received these, he must be held to have ratified the act of his guardian. He seems to have acted under advice of counsel. It is very generally if not uniformly held that one who takes dividends — 543 — under even an invalid assignment is precluded from controverting its validity in its entirety. Wallace v. Cumming, 27 La. Ann., 631; Burrows v. Alter, 7 Mo., 424; Moale v. Buchanan, 11 Gill & J., 326; Howe v. Henriquez, 13 Wend., 241; Raburn v. Yard, 1 Rawle, 163; Fiske v. Carr, 20 Me., 301; Rapalle v. Stuart, 27 N. Y., 310; Varnum v. Evans, 2 Mc-Mullan, 409; Richards v. White, 7 Minn., 271; Merrill v. Englesby, 28 Vt., 156; White v. Banks, 21 Ala., 706; Frierson v. Branch, 30 Ark., 454. This, as held by the court below, renders it unnecessary to consider the validity of the assignment. The facts proved showing that B. H. Bassett had been released, no judgment could be legally rendered against either of appellants, and as the case was tried without a jury, on the finding of the facts the judgment of the court below will be reversed and here rendered for appellants. Reversed and rendered. Delivered March 11, 1890.