Chalaron v. M'Farlane

Marlin, J., delivered the opinion of the court. ■The'defendant seeks the reversal of a judgment, which was rendered against him, as surety in an appeal bond with one Yance. It appears from the evidence, that four lots of ground belonging to Vance, were seized on an execution which issued on a judgment obtained against the latter, and affirmed by this court. The sale of the property seized was stayed, in consequence of a surrender made by Vance, of his goods, for the benefit of his creditors. According to the Code of Practice, article 579, the condition of the appeal bond is, that the, appellant shall satisfy any judgment that may be rendered' against him, or, the same shall be satisfied by the sale of his estate, real or personal; otherwise the surety shall be liable in his place. It is clear, therefore, from these expressions, that if the appellant does not satisfy the judgment, a sale of his estate, real and personal, is to take place; and if the proceeds of this sale prove insufficient, then the liability of the surety begins. It appears to this court, that notwithstanding the general provision in the Louisiana Code, article 3035, excluding judicial sureties from the benefit of discussion, il seems to be different as regards sureties in appeal bonds. From the very nature of the obligation, and the. terms of their engagement, they derive the right of resisting a recourse on them, until it is clearly shown by the creditor, that the sale of all the [230] estate and effects of the principal has proved insufficient to discharge his demand. tysigncRUHank appeal bond, to be used in apar-tieuiar -way by who fi'orn'üí at i n tended,by which the responsibility of the surety was greaüy^increas-avaiT'wmseiFof tills matter, unless it is shown the appellee or obligee ot the sant of the fraud, It is true, in the present case the money cannot be made on1 the execution. But the code does not speak of a sale under execution particularly. For any thing that appears in the record, the plaintiff may still be fully paid by the sale of the four lots under seizure. It is to be presumed he secured his privilege and mortgage on them, by registering his judgment. These lots, it is true, have become the property of the mass of the creditors, by the surrender, but are nevertheless subject to the creditors’ privilege and mortgage, who is also included in the mass. They are still in pledge for the sale, the original price of which is to be paid out of their proceeds. The contract of suretyship is one, the performance of which imposes as sacred duty and obligation on the party obligating himself, as that resulting from any other contract; but its performance in good faith, is not inconsistent with the right and privilege allowed the surety, to avail himself of any ^ exception or provision of law, introduced for his benefit and protection. The recourse of the plaintiff, in this instance, against the defendant was premature. The surety is not bound to pay, until all the property, both real and persoiial, is first exhausted. This does not appear to have been done in the present case, r This view of the matter, seems to render it unnecessary, that we should act on another plea set up by the defendant, which he prays for a trial by jury. We have, however, considered it, on the ground that the expression of the . . . , . . , . . , opinion of this court in relation to it, may prevent another sujt. This plea is founded on the averment, that the defendant signed a blank appeal bond, with the assurance that it was only to be used in cáse of a devolutive appeal j *i*i i iiii being deemed necessary, m which case he would only be for costs, but that the bond was afterwards, without his knowledge and consent, filled up for a suspensive appeal, [231] by which he was rendered liable for the whole debt and costs. The court is of opinion, that the decision of the district judge was correct, in which he held, that even if this fact was true, it could not avail the surety, unless it was shown that the appellee was cognizant of the fraud. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the motion for judgment on the bond, or rule to show cause, be discharged, the plaintiff paying costs in both courts.