Gravier v. Gravier

Porter J. delivered the opinion of the court. The plaintiffs gave to the defendant a bond of indemnity, do save him harmless from the claims of the creditors of Bertrand Gravier’s estate. Thirty years having elapsed since .the opening of the succession, the obligors applied to the court of the first instance to have the bond cancelled, averring that all claims had become extinguished by prescription. The court .sustained this application, and the defendant appealed. We think the court erred. The prescription of thirty years does not necessarily extinguish all debts. There may among the creditors some, against whom prescription did not run for a portion of the time just stated. When the obli-gor of an instrument such as this asks to have it cancelled, it is not sufficient he should render it probable no injury will occur; he ought to place the matter beyond doubt before the obligee can be deprived of his security. If the debts are all discharged,little injury is sustained by the plaintiffs in suffering the instrument to remain; — if, on the contrary, any yet [459] exist, a great hardship would be inflicted by depriving the detendant of the protection against them which the bond affords. It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be reversed. And it is further ordered, that the rule taken in this case be discharged, the appellee paying costs in both courts.