Thompson v. Wilson's , 13 La. 138 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiff, endorser of a note of the defendant’s testatrix, on which judgment was obtained against him, and affirmed in this court, in the case of M‘Donough vs. Thompson et al., 11 Louisiana Reports, 66, prays to be relieved as her surety, and that the defendant may be decreed to pay the amount of said note to the holder, or to himself.

After the general issue, the answer avers, that the plaintiff endorsed the note stated in the petition, drawn by Chesnut, in his capacity of attorney of the testatrix, as her surety; but that the said Chesnut was without authority to subscribe the said note, as the attorney of the testatrix ; that there was no consideration for which the said note was given, except a sum of four thousand eight hundred dollars, which her husband had borrowed from the payee, and that the plaintiff suffered himself to be sued, and judgment to be obtained and affirmed, without giving any notice to his principal, who might have furnished him with evidence to establish the illegality of the consideration, the sum being partly made up of compound and usurious interest, etc.

The Court of Probates gave judgment in favor of plaintiff, for the amount of the judgment obtained against him, but ordered that the money thus made be brought into court, there to remain, for the indemnification of the plaintiff, etc.

Our attention is drawn to a bill of exceptions to the admission of parole proof of the signature of the testatrix, to a paper purporting to be her power of attorney to Chesnut, mentioned in the petition, by two persons well acquainted with her hand writing, on the ground that there was a subscribing witness to the power, by whom alone the signature could be proved, unless his death, or residence out of the state, was first proven. The Court of Probates was of opinion, that his absence was fully established. The record shows, that a subpoena was taken out for the subscribing witness, on which the sheriff returned that he was not to be found in the parish. Taylor deposed, that the subscribing witness is not an inhabitant of the parish, within his knowledge ; that he has made search for him without success ; has written to the parishes of St. Mary and St. Martin, to obtain information relating to him, but has received no answer; that he understood he was living with a Mr. Rogers, near Pattersonville, in Attakapas; wrote to him, but received no answer; he has seen a neighbor of Mr. Rogers, who knew no such person as the subscribing witness at Mr. Rogers’s. He has made frequent inquiry, to discover the residence of the subscribing witness, without being able to do so.

Parole evidence will be admitted to prove the handwriting of a subscribing witness to a written instrument, after j every diligence Í has been usedj in vain to find him out, even, without showing that he is dead, or resides out of the state. A surety has the right to claim an indemnification by instituting suit against his principal, even before making any payment; a for-tiori when a judgment has been obtained against him, he may demand indemnification without payment. When the surety lias paid upon or after being-sued, even without informing his principal debtor, he has his recourse, although the debt- or was in possession of the means of having the debt declared extinct.

( On these facts, we think the court did not err, in concluding ¡that the absence of the subscribing witness was sufficiently 'accounted for, and correctly admitted proof of his handwriting, and that of his principal. Louisiana Code, article 2241; Code of Practice, article 325.

On the merits, it appearing that the plaintiff, as a surety for the testatrix, endorsed a note of hers, duly executed by her attorney in fact, that the note having been protested, and suit brought for its amount, and judgment obtained therefor against the plaintiff, he has a right to demand an indemnification, although he has not made any payment. The Louisiana Code, article 3026, provides that a surety may, even before making any payment, bring a suit against the debtor, to be indemnified by him, when there exists a lawsuit against him for payment — a fortiori when judgment has been obtained.

The same code, article 3025, provides, that when the surety has paid without being sued, and without informing the principal debtor, he shall have no recourse against the latter, provided, that at the time of payment the debtor was in possession of such means as would have enabled him to have the debt declared extinct. This is a negative, pregnant with the affirmative, that when the surety has paid, upon or after being sued, even without informing the principal debtor, he shall have his recourse against the latter, although the debtor was in possession of such means as would have enabled him to have the debt declared extinct.

When circumstances existed at the creation of the debt which enabled tbe debtor to resist payment, still if he suffers his surety to remain ignorant of them, and the latter pays, he will be bound to indemnify him. The absence of, or insufficiency of consideration may be opposed to the creditor, but not to the surety, who has paid or is liable to pay, especially when he is ignorant of such defence.

The code in this arlicle speaks of a debt which has been extinguished, and, perhaps, is not to be extended to a debt from which the principal could have been relieved ; as that for which judgment has been obtained against the present plaintiff. When a debt has become payable, the principal has some ground to expect that the surety before he pays it, will inquire whether it has not been paid by the former; it is otherwise when the creation of the debt was attended with circumstances which enabled the debtor to resist payment. In the latter case, the principal who suffers his surety to remain ignorant of these circumstances, is without excuse.

The absence or insufficiency of the consideration may be opposed to the creditor, but not to the surety, especially when he is ignorant that relief may be had on that ground.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.