Higdon v. Bailey

By the Court. McDonald, J. delivering the opinion. [1.] There was no error in admitting evidence to prove that the defendants were only sureties for Hilary Higdon. The evidence does not vary the written contract, and it was certainly within the spirit of our statutes which authorize an issue to be made up and tried between joint-makers of notes as to the surety-ship of one for the other. [2.] We do not think, however, with the presiding Judge in the Court below that the facts proven, as they appear in the return to the certiorari, discharged the sureties from their liability on the note. The plaintiff had three months with [428] in which she was compelled to sue the principal, after the notice was given. If she sued him at anytime within three months from the time the notice was given, she saved her remedies against the sureties. If he had removed from the State within that time, she was not bound to follow him out of the State to sue him, nor did she lose her remedy by her failure to sue him before he left the State, within three months of the notice, the omission to sue not being the result of collusion between the plaintiff and the principal in the note. 3 Kelly, 523. Sureties to promissory notes undertake to pay them at maturity, if the principal does not, and before our statute, holders were not compelled to sue, after notice to sue by the sureties. It was the duty of sureties to comply with their engagement and to adopt such measures to recover from principals, the amount paid for them, as in their judgment, their interest required. This is their remedy now, if the notice authorized by the statute cannot avail them. There is nothing in the purchase by the plaintiff, of the interest of the principal in the notes, in his deceased father’s estate, to relieve the sureties. He had a right to sell and the plaintiff had a right to purchase. There was no legal impediment to a fair sale and purchase. There is nothing in the record to show that there was any agreement or understanding between the plaintiff and the defendants, and the principal Higdon, that she should retain in her hands for their indemnity the portion coming to him from his father’s estate. She was bound according to law to pay to him his share of the estate of her intestate, as soon after the expiration of twelve months, as the debts were paid, and nothing could relieve her from the obligation, except the restraint of legal process or his consent. If she thought proper to advance to him his portion, (if it was an advance,) if done without fraud or collusion for the purpose of depriving the defendants of a legal right, and there is nothing of the sort apparent in this record, the sureties cannot claim to be dis [429] charged thereby. The charge of fraud in the circumstances is not well sustained by the record. The note sued on, bears date on the 8th November, 1854, and became due on the first day of September thereafter. The plaintiff purchased the interest of Hilary Higdon on the 21st May, 1855. He left the State on Sunday night, before June adjourned Term of the Superior Court of Gordan county, 1856. The notice to sue Higdon was given about the last of August or first of September, of the same year. Suit was instituted on the 24th February, 1857. One of the witnesses who testified to the notice, says Higdon had left or was about leaving the State, at the time the notice was given. According to the evidence, he remained in the State more than twelve months after his interest in his father’s estate was purchased by the plaintiff, and several months after the maturity of the note. The most reliable evidence, that of the bailiff who had executions against him, was that he had left the State at least two months, before the notice to sue. And it appears also, that the object of giving the notice to sue Higdon, was that the other sureties might be sued, lest they should move off and leave the entire debt to be paid by him who gave the notice. It is our judgment, that there is nothing in the circumstances of this case as disclosed in the record, to discharge the sureties from their liability to pay the debt sued on. Judgment reversed