Dougherty v. Richardson

Hanna, J. On the 3d of November, 1855, one Speake recovered a judgment in said Court, against Cravrford $ Sinex, which was assigned to Richardson. On the 6th of December, 1855, said Crawford sold a part of his real estate for its full value, and the same has eventually, for its full value, passed •into the hands of Dougherty. In November, 1856, and at several times since, writs of fi. fa. and vendí, have been issued from the clerk’s office of said Court, in favor of said Richardson, and in each instance recited that the same were issued on a judgment recovered by Speake, against Crawford § Sinex, on the 3d day of November, 1856. The property of said Crawford, levied upon and described in said writs of vendí, was sold on the same, and bought by said Richardson, for 25 dollars. It is averred it is worth 2500 dollars. Hpon a fi. fa. with like recitals, of those that preceded it, the property of Dougherty, above referred to, was levied upon. These facts are averred in the complaint. 'It is also' charged [414] that Sinex has property, real and personal, subject to execution, more than sufficient to satisfy said claim, and that Crawford and others, grantors that .intervene between him and the said Dougherty, are insolvent; ■ Crawford, &c., answered, admitting the truth of the complaint. Sinex answered setting up that he was surety only in the original note, upon which the judgment was rendered, and asking the Court to so find. To this latter answer Dougherty demurred, which was sustained. Richardson demurred to the complaint, which was also sustained, and the relief asked, namely, an injunction, was refused. Dougherty appeals to this Court, and' complains in his assignment of errors that the ruling on the demurrer to his complaint was erroneous. Sinex assigns a cross error upon the ruling on the demurrer to his answer. Thus, the real question presented as between Dougherty, Richardson and Sinex, so far as. the latter’s interest was involved, was, whether under these circumstances, the propei’ty of Sinex should have been resorted to in satisfaction of said judgment before that which was aliened by his co-defendant, Crawford, for a valuable consideration. So far as the record discloses, there was nothing showing the vendee of Crawford, or any other stranger, but that Sinex was not only equally bound, as a co-defendant of record, but equally liable to pay the said judgment. It has been held that, where the judgment is joint, those against whom it is rendered should be regarded as principals. Laval v. Rowley, 17 Ind. 36. Viewing it in this light, we can see nothing by which the vendees of ■Crawford or those claiming under him, could have [415] had any notice of the relative .rights of Crawford § Sinex, as ■ between themselves. They were not in a position to ,be put upon inquiry on that point, because, as Sinex had taken no steps to have himself declared a surety only, on the record, he was to be regarded as a principal; that is, such was the legal presumption. The vendees of Crawford, having acquired title and expended money on the faith of that presumption, the next inquiry is, can their rights be affected by any effort which might be afterwards made by Sinex, that, as between himself and Crawford, would compel the exhaustion of the property of the latter before that of the former was resorted to? There are principles of equity that, it appears to us, should forbid this. By standing by and suffering himself to be regarded as a principal debtor, Sinex enabled Crawford to obtain credit with the person to whom he sold his land; that is looking to the small amount of the lien and the large amount of property in the hands of the joint judgment debtors, said vendee paid the full value of the property. purchased. If either Sinex or these vendees, should now suffer, it should be the former, because he thus enabled Crawford to obtain the money of the latter. The land, that thus passed into the hands of the vendees of Crawford, may be regarded as a fund from which this debt might be ultimately paid, and said vendees, as, in one sense, innocent holders thereof, for that use. It is a security for the payment of the debt. If Sinex is to be regarded as a surety, he can not be so regarded in a light of innocency, that is, as having acted in good faith, towards those who were vesting their money. He has, it appears to us, so acted as to divest himself of the privilege of insisting upon his position as a surety as against, and 'in contravention of, the equitable rights that have supervened in favor of the alienees of said Crawford. Whether these equitable rights extend to the [416] whole or only an equal part of said claim, we have not particularly inquired; but we are clear that he is not in a position to claim any rights of a surety as against Dougherty. Thomas L. Smith and M. C. Kerr, for the appellant. Randall Crawford and Henry Crawford, for Mary Ann Richardson. Janies Collins and Alfred B. Collins, for Thomas Sinex. Per Curiam. The judgment is reversed, with costs. Cause remanded.