White v. Ault

[553] By the Court. Lumpkin, J. delivering the opinion. [1.] What relation did White sustain to the debt from Staf-%. ford to Ault, after the substitution was made ? We think .there can be no doubt' that it -was that of guarantor or secu.i-ity only — not security even for the whole debt, but to the extent of the property which he mortgaged to secure it. True, he was the original and principal debtor to Ault, as Stafford was to him. But the parties get together and agree that there shall be a transposition of these liabilities ; that Ault shall surrender up his demand on White — White his on Stafford, and that Ault shall take the notes of Stafford, secured by a mortgage from Stafford on the Cherokee House,, and by a mortgage from White on the house and lot owned-by him on Thornton Avenue. And there was an exchange,, cancellation and execution of papers accordingly; consequently, we hold upon this branch of the case, that the ques-. tion of release did properly arise between White and Ault,, growing out of the agreement by Ault, on the 24th of December, 1849, to give further time of payment to Stafford on the mortgage debt. And further, it is the opinion of this Court, that if time of payment was given by Ault to Stafford, beyond that specified in the notes, without the consent of White, either express or implied, so that Ault himself could not coerce payment within that period, nor be compelled to do so by White the security, nor the security himself do so, by paying up the debt and getting the control, that the surety is absolutely discharged. (2 Hare & Wallace’s Amer. Lead. Cases, 159, 160.) £2.] Further, we hold, that it was error in the Court to instruct the Jury, that the rent accruing on the house and lot on Thornton Avenue, might be retained and appropriated by Ault to re-imburse himself in usurious interest, which he might have to pay on borrowed money. Had White made a [554] contract to. that effect, it would not have been binding; for an agreement to indemnify another against a violation of the law, must be void. We express no opinion as to that part of the case which refers to the sale of Stafford’s property, for the reason;. that the facts connected with this whole transaction are too • vaguely and indefinitely set forth in the record, to enable us - to form a satisfactory opinion. Eor instance, we are ignorant as to the date of Bryant’s mortgage, when it was foreclosed, whether before or after Stafford executed the mortgage to Ault. We know not the date of Blount’s judgment; the bill of exceptions does not show whether the Cherokee ■ House and the personal and perishable property of Stafford’ was sold under any one ór more or all of these outstanding liens against Stafford or his property. The liability of Ault; the purchaser, to account with White, the security, concerning this property, may depend 'somewhat, if not altogether; upon a clear understanding of some one or more of these-facts.