Ragland v. Milam

GOLDTHWAITE, J. The previous decisions of this court háve established the principle, that parties to notes, &c, as between themselves, are permitted to show that different relations exist than is disclosed by the paper itself. [Sherrod v. Rhodes, 6 Ala. Rep. 683; Pollard v. Stanton, Ib. 461.] And the only question here is, whether the facts disclosed constitute, the relation of joint sureties, between Milam and Ragland. From the face of the paper, it is evident the primp, facie intendment is, that the former was the principal in the note, but it is equally so from the extrinsic facts, that it was made solely for the accommodation of King. The disclosure that it was thus made, does not induce the conclusion that the other parties signing the note, intended to become bound between themselves, as joint sureties, as the presumption arising out of the circumstance of the paper being solely 621 for the accommodation of King, is no stronger than when the same fact is disclosed in relation to bills or notes, indorsed by several persons, and with respect to which we have held the liability to be as indicated by the security itself, until the agreement of the parties to be otherwise liable, as be-' tween themselves is made to appear. [Sherrod v. Rhodes, 5 Ala. Rep. 683, and cases there cited.] We must then examine the evidence to ascertain if there is any thing disclosed from which such an agreement can be inferred. The only circumstance relied on is, that Ragland, after the note was made, induced Milam to procure from King a written declaration that the latter was bound as principal. The writing itself is not produced, nor have we the means before us of knowing what admissions of a joint liability were then made by Ragland, if indeed there were any. This circumstance, standing alone, is not sufficient, in our judgment, to outweigh the intendments which must -be drawn from the face of the note, and the declaration of Ragland to King, that he would not stand as his surety,-but would do so for Milam. The cases of Warner v. Price, 3 Wend. 390, and Pickering v. Marsh, 7 N. H. 192, chiefly relied on by the counsel for the defendant in error, do not seem to us to warrant the conclusion, either that Ragland intended to be bound as a joint surety with Milam, or that this relation is to be inferred from his subsequent conduct. In the first of these citations, the contract was obviously one of joint suretyship, and in the other the attempt was to charge an individual as principal, when the evidence made it entirely clear, the plaintiff entered in the transaction as surety for other parties merely, and had so admitted by sueing them, and using the evidence óf the one standing as the nominal principal upon the face of the paper. Upon the case as shown, we think it clear that Milam was chargeable to Ragland, as the principal debtor, and consequently the latter had the right to retain the whole sum paid on the judgment, out of the assets of the estate of Milam in his hands as administrator. ■ It is scarcely necessary to add, that the court erred in allowing him only one half of that sum. Reversed and remanded.