Sherraden v. Parker

Wright, J. surety: onev™ment In our judgment the strength of plaintiff ’s case is found in the fact that he was the surety of the principal debtor, a fact known to the plaintiff in execution, and the sheriff, and that the abandonment of the levy discharged him from further [30] liability. For though we might hold that the levy itself did not operate prima facie, or otherwise, to satisfy the judgment, the inquiry would still remain, whether, under the circumstances, plaintiff was not discharged. While the authorities are not uniform as to the effect of a levy upon personal property in this State, the tendency of the decisions is to hold it until explained a satisfaction. Lucas v. Cassady, 2 Gr. 209; Reed & Co. v. Crosthwait, 6 Iowa, 219; McWilliams v. Myers, 10 Id. 325. Of course it is not meant that the levy is .a conclusive satisfaction, but only that as between the parties to it, it prima facie has this operation. Now the circumstances in this case may he such as that between Warner and,-the plaintiff in execution, the levy would not have the effect claimed. And though this should be true, we think the present plaintiff is entitled to the relief claimed. ^Thqj, writ was levied'up'on the property which he held for his indemnity. He was known as the surety. After -the officer seized the "property it was in the custody of the law, and_ neither he nor his principal had any right to . disturb or interfere with it. The surety found or knew that the property was about to be subjected to the payment of this debt, the very debt for which he held ias security. Without his consent, the officer voluntarily released it, abandoned his levy, and permitted it to return to the possession of the defendent in execution. His knowledge of these facts, in the absence of some showing of fraud on his part, or that plaintiff in execution, or the officer had relied upon his acts or were misled by him, or the like, could not affect his legal rights. As to him it was the duty of the officer to hold the property, and his voluntary abandonment of it, operated to release the surety, whatever may still be the liability of the principal, or whatever be that of the officer., to the plaintiff in [31] execution. It is not as though plaintiff had security or other property, as to which his position remained unchanged. For while he may not in equity be heard in such a case, to claim his discharge by reason of such levy upon and abandonment of other property, it is quite different when the officer seizes the very property thus held, and without the consent of the surety voluntarily abandons it. "What duty did the law impose upon plaintiff after this levy ? What could he do ? True, after the failure to sell, and the abandonment, he might have taken the property into his possession, but as between the parties to this controversy, was this his duty? Most clearly it seems to us that it was rather the duty of the plaintiff in execution, or the officer acting for him, to take care of the property. The officer had a right, after the failure, to sell, and it was his duty by law, to take the property into his possession, ©r take a delivery bond, to again offer it for sale. So, too, it was his du'tj^p exhaust the property of the principal before proce^dihg*!. to sell that of the surety, and “surety” as h.ere ■ embraces accommodation indorsers, stayers and. all-otliéi^'' whose liability on the claim is posterior to^thaiy another. Rev. §§ 3258, 3259. In Chambers v. Cochran (18 Iowa, 159), cited appellees’ counsel, the levy was upon real property, and it found that the surety himself was not without fault. And yet in that ease this language is used. “ Of course it is otherwise where, by some voluntary act of the creditor, he surrenders, without the consent of the surety, an actual lien, or withdraws, to the surety’s prejudice, an execution, after an actual levy upon the goods of the principal. Then if loss occurs, it will fall on the creditor not on the surety.” In view of the peculiar relation in which the surety stands to the principal and creditor, the doctrine must be, [32] that the surety may claim his release when the creditor surrenders any hold or waives any lien, which would have resulted in the discharge of the debt. Thus in Kuhive v. Westmoreland Bank (2 Watts, 136), it is held, that if a levy be withdrawn, or other security abandoned, to the injury of the surety, and without his consent, he will have an undoubted right to protection. And see also Commonwealth v. Miller, 8 Serg. & R. 452, where there was a withdrawal of a levy on the goods of the principal, in consequence of which they were seized and sold under another writ, and the surety was held entitled to reduce the demand to the extent of what might have been made if the execution had been pushed to a sale. See also Commonwealth v. Hass, 16 Id. 252; Holt v. Body, 6 Harris, 207 (a case of joint debtors); Dixon v. Ewing, 3 How. 280 (based upon the relation of the parties and not upon the ground that the levy satisfies the writ). And Sneed v. White (3 J. J. M. 525), where it is held that a stay of execution by the debtor, after levy upon the property of the principal, will exonerate the surety, if the lien resulting from the levy be extinguished, and the surety did not approve of the indulgence. “ Whatever doubt may exist as to the reason, there can be none as to the result; and all the authorities agree that the discharge of the surety will necessarily follow from the abandonment of an execution which has once been laid on the goods of the principal.” 2 Am. Lead. Cas. 344, and the numerous cases, English and American, there cited. Reversed and remanded, with directions to make the injunction perpetual.