Headlee v. Jones

Wagner, Judge, delivered the opinion of the court. Assuming that the appellant was a surety on the notes sued upon, the material question to be decided is whether he was released in consequence of the giving by the principal of a deed of trust on certain real estate to secure their payment. The deed of trust provides that if the grantor shall pay the sums of money specified in the notes within twelve months, then the deed shall be void, etc. There is no' express contract by which the time for payment is extended, nor is there any stipulation prohibiting an action being brought on the notes at any time after their maturity. In order to discharge a security the creditor must do some act by which he deprives himself of the right of proceeding at law in the collection of the obligation. The agreement must not only be founded upon a sufficient consideration, but it must operate as an estoppel on the creditor sufficient to prevent him from bringing an action before the expiration of the extended time. (Rucker v. Robinson, 38 Mo. 154.) If the .creditor does not divest himself of the power to sue, it is within the competency of the security at any time to compel him to do so upon giving notice, or he may pay off the debt and-enforce his right against the principal. In the case of Schmarr v. Schnitter et al. (38 Mo. 478), judgment was about being obtained on the note; and the agreement extending the time contained an express covenant, supported by a valid consideration, -that no sale should be forced upon the judgment until after the expiration of eighteen months. The holder of the debt in that case tied up his hands and precluded himself from acting. But here the case is entirely different. Although the principal authorized the trustee to sell the real estate if the notes were not paid within twelve months, yet there was no obstruction to the creditor pursuing'Ms action at any time. I see nothing, therefore, that can be construed into a discharge of the surety. [238] As this view decides the whole case, there is no necessity for noticing some other questions which were raised in the argument. Judgment affirmed. The other judges concur.