Perry v. Cafer

Opinion by Judge Hardin : This case is essentially different from: that of Hobson, etc., v. Hobson’s Ex’r (8 Bush 665), where the debt to secure which Mrs. Hobson united with her husband in a mortgage of her property, remained unsatisfied; and it was held that the statute of limitation, which would have released a personal surety, did not release the mortgage. In this case the mortgage of B. F. Cafer and wife was not made to secure' the debt to Richards or Perry, but to indemnify Wesley Cafer in his supposed liability as the surety of B. F. Cafer. If Wesley Qafer’s liability had continued, the indemnifying mortgage might have inured to the benefit of the holder of the debt; but when the mortgage became released under the judgment of the court in consequence of the changing or interpolation of the note, the mortgage given to. secure him against his pre-existing liability also ceased to be obligatory. This was, in effect, decided in the cases of Hunter v. Richardson, 1 Duvall 248; Vandiver v. Hodge’s Adm’r, 4 Bush 539, and Yeates v. Weeden, Adm’r, 6 Bush 438. Therefore the judgment is affirmed.