Emmons v. Overton , 57 Ky. 643 ( 1858 )

Judge Simpson

delivered the opinion of the court.

The appellant insists that he is discharged from all liability on the note upon which this action was brought, on the ground that he executed it merely as surety, and that seven years had elapsed without suit thereon, after the cause of action accrued, before this action was commenced.

The note is a joint one, on the appellant and Garret Freeman. It contains no recital that one of the obligors was principal and the other was surety. It became due on the 10th day of August, 1842. It is credited by $136 11, on the 3d of November, 1849, which, as the proof shows, was paid by the appellant; and this action was commenced in March, 1855.

1. Parol evidence is- admissable to show who is principal and who was surety in a note which is joint and several on its face. (5 B. Mon. 564.)

It is contended, on the part of the appellee, that the appellant cannot avail himself of the defense relied upon by him for two reasons:

1. That he is estopped, by the writing itself, from proving by parol testimony that he is a surety merely, and not a principal obligor in the note.

2. That the case is taken out of the operation of the statute of limitations by the partial payment made by the appellant on the debt sued for.

The argument in favor of the first proposition is, that by the terms of the writing itself both the obligors are principals, and according to a well settled rule of evidence parol testimony is inadmissable to contradict or explain or enlarge a written contract, consequently the appellant cannot show that he is a mere surety, as' the establishment of that fact would be inconsistent with the legal effect of the writing executed by him.

This argument is however founded on a misconception of the legal effect of the writing upon which the action was brought. It does not state the character or relative position of the obligors, nor does the law, in the absence of such statement, conclusively fix the character they occupy. No statement or recital in the writing is contradicted by showing that one of the obligors is surety and the other is principal. In the absence of all testimony on the subject the law regards them as equally liable, inasmuch as the writing itself does not furnish any grounds for discrimination. But if this legal construction of the writing should be permitted to have the effect contended for, the statute in favor of sureties would become, in a great measure, a dead letter, except in those cases where the note stated on its face who was principal and who was surety. This question however was expressly decided in the case of Lewis vs. Harlin, 5 B. Monroe, 564, in which it Avas held that a note like the present one did not create an estoppel, but that the fact of suretyship might be proved by parol testimony, which decision has been ever since followed.

2. Payment by a surety of part of- a debt, after he is discharged by the operation of the statute of limitation, does not have the effect of reviving his liability for the remainder of the debt—he may rely on limitation to avoid the payment of the balance. 3. A promise by a debtor, either express or implied, to pay his debt after it is barred by the statute of limitation, will revive his liability because based on good consideration—a moral obligation to pay; not so with a surety whose obligation is only legal; and no promise made in ignorance of his legal discharge is binding, though in writing.

The effect of the partial payment made by the surety is the next question to be considered. To determine what effect should be given to it, it will be proper to inquire into the nature and extent of the liability of a surety. It is purely a legal obligation, created by the execution of the writing, and not originating out of the consideration upon which the liability of the principal debtor is founded. There is therefore a manifest distinction between the debtor and his surety. The former is under a moral as well as a legal obligation to pay the debt; the latter is under a legal obligation merely. The former may be liable on account of the original consideration; the liability of the latter does not go behind, and is not antecedent to the execution of the writing by which it is created.

Upon what principle, then, is it, that a partial payment of the debt by a surety is to be regarded as sufficient to deprive him of the benefit of the statute. If the payment be made before the expiration of the seven years, it is certainly not entitled to any effect, because, in that case, he would be liable for the debt at the time of the payment, and the recognition of such liability could not prevent him from subsequently relying upon the statute, when the limitation had expired. If the payment be made, as it was in this case, after the seven years had elapsed, and the surety was thereby discharged, it could not revive his liability, nor take the case out of the operation of the statute. Even if it could be regarded as an acknowledgment of a subsisting liability, it would only prove that the surety was ignorant that he had been discharged by the lapse of time, and if it could be regarded as an implied promise to pay the debt it would be without consideration, and therefore not obligatory.

Where a cause of action arising upon a parol contract has been barred by the statute of lirnitations, the debtor can revive his liability, and take it out of the statute, by a promise either express or implied to pay the sum which he owes. Such a promise is obligatory, because it is supported by a sufficient consideration, he being under a moral obligation to pay the debt, although, in consequence of the statutory bar, no action could be maintained upon it. But a surety is under no such moral obligation, and when he is discharged from his legal liability a promise to pay the debt, even if the promise were in writing, would not be legally binding, unless it was made upon a sufficient consideration.

Neither of the reasons relied upon is sufficient, therefore, to deprive the appellant of the benefit of the statute of limitations.

Wherefore, the judgment is reversed, and cause remanded that a judgment may be rendered in favor of the appellant, so far as the appellee seeks to hold him individually liable for the debt sued for.