Souser v. Cunningham

Perkins, J. This was a suit by John Cunningham against Jacob Souser and Frederick Kalburn, based upon two joint and several promissory notes made by the defendants to the plaintiff. Souser made no answer to the complaint. Kalburn answered, making his answer a cross-complaint against Souser, and alleging that the consideration of the notes was the conveyance to Souser by Cunningham of certain lots of ground situate in Americus, Tippecanoe county, Indiana; that Souser was thus the real debtor, and he, Kalburn, but surety in the notes sued on; that Souser was insolvent, but that he was then “the owner of and in possession and use of said lots under said conveyance,” and he prayed that the Court, in rendering judgment in the case, would specially order that, after the other property of Souser, if he had any, [201] should be sold, the said lots, also, • should be sold to pay the plaintiff’s judgment, when rendered, on the notes in suit, before the property of said surety should be taken, on the ground that they were for the purchase-money of said lots, and a lien upon the same, in favor of the surety, Kalburn. Souser, Kalburn's s co-defendant, demurred. The Court sustained the demurrer to the paragraph, it constituting the entire answer of the defendant, Kalburn. Kalburn excepted to the ruling of the Court, and then obtained leave to answer further. He then answered as follows: He admitted the making of the notes; averred that Souser was principal and he but surety, asked that the question of suretyship should be tried, and judgment entered that the property of the principal be first exhausted, &c. The cause was then submitted to the Court. The Court found for the plaintiff generally on the notes, as a matter of course, because they were admitted by both defendants. The Court found further that Kalburn was surety, and ordered that the property of Souser, subject to execution, should be first exhausted, &c. The evidence is not in the record. There was no motion for a new trial, and there is no bill of exceptions in the record. It is claimed that the Court erred in sustaining the demurrer of Souser to the first answer' of the defendant, Kalburn. It will be observed that the only question in the cause is between the two defendants. Now, passing by the question as to whether the rule that, where a defendant, instead of standing upon his pleading when a demurrer has been sustained to it, answers over, and thereby waives the error, applies in this case; we may inquire whether, supposing the first answer good and the Court in error in holding it bad, it appears by the record that Kalburn, the appellant, has sustained injury from the ruling; for if it does not, but rather the contrary, then no reason is shown for reversing the judgment in the cause. H. W. Chase and J. A. Wilstach for the appellants. Daniel Mace, for the appellee. By the judgment as rendered, Kalburn is protected from liability on the judgment against him and Souser, till Souser’s property, subject to sale for the making of the judgment, is exhausted; and there is nothing in the record showing that the lots for which the notes were given are not a part of his property liable to be thus sold; but, on the contrary, the presumption from the record is that they are a part of such property. It is shown that the fee of the lots is in Souser; that he is in possession of them, and that they are subject to the lien of the judgment. It is not shown that Souser is a person entitled to claim any property as exempt from execution; and it is not shown that any third person had acquired a lien upon the lots; hence, for aught that appears, they are subject to sale on the judgment in this suit, as Souser’s property, before Kalburn can be disturbed. The question which the appellant desires us to decide is, conceding that Cunningham, the seller of the lots, waived his vendor’s lien upon the lots by taking security upon the notes for the purchase-money, does it not exist, upon equitable principles, in favor of the surety, so that he may compel the plaintiff to sell upon it against the principal before looking to the surety ? Now, as we have said, it does not appear that the decision of this question is material, because it is just as well for the surety that the lots be sold on the judgment lien of Cunningham, the seller of the lots and the plaintiff in the suit, as upon the lien of a vendor; if, upon any principle, such lien exist in flavor of the surety. See, as to this point, however, Cox v. Ward, 20 Ind. p. 54. Per Curiam. — The judgment below is affirmed, with costs and 1 per cent. damages.