Lillard v. Puckett , 68 Tenn. 568 ( 1877 )

Freeman, J.,

delivered the opinion of the court.

We need but refer to a few facts in this record to raise the only questions that we deem necessary for the proper disposition of the questions in this case.

A bill was filed by the executor of Charles Puckett,- deceased, in the chancery court of Rutherford county, by which, among other things, his lands were asked to be sold. A decree to this effect was made, and the clerk of the court ordered, as commissioner, to sell the same, which was done, Enoch N. Dickson becoming the purchaser at about seventy-five dollars per acre. This sale was made in December, 1859, and reported to this court, when this report was confirmed. Dickson gave two notes with security for the amount bid by him, which fell due, as is alleged in the bill, before courts were closed by the war. After the war, in 1866, a judgment was taken against Dickson and his sureties for the money due on these notes, the amount with interest being about twenty thousand dollars. It was a part of this decree, and if the amount was not paid by a time fixed, then the land purchased by Dickson should be sold to satisfy the decree, it being the purchase money for the land. In 1867, the clerk and master reported to the court that he had sold the land in pursuance of the former decree, and that Hiram Jenkins became the purchaser at the aggregate sum of $9,644.68, and paid $500 of the same in cash, for balance had given his notes, due in one' and two years, with W. R. Jenkins, J. E. Jenkins and ¥m. B. Lillard as sureties.

This ¥m. B. Lillard, the surety, now files this bill to enjoin the collection of this debt, and insists that, for various irregularities, the sale in the first place was invalid — that is, the one to Dickson — and that the last to his principal is also invalid, and the title obtained, or which may be obtained by Jenkins, will not be good on account of death of parties in the original cause, and failure to revive, and perhaps for other causes.

We do not deem it necessary to go into the details of allegation in this bill, as it is not insisted that there is any ground of defense to the surety growing out. of his own contract, that is, that any fraud existed or undue advantage was taken of him. His principal, however, did not in his lifetime seek to avoid the sale, or, at any rate, cerlainly did not get clear of his purchase. His heirs do not seek now to do so, and we are totally unable to see any principle on which the surety can be permitted to get «lear of his liability on a note given for property purchased by his principal, because he will not get a good title to the property so purchased. If the principal does not avoid the sale, we can see no ground in law or sound reason on which the surety can come forward and insist on having the sale set aside and the purchase declared void, in order to avoid his liability on his suretyship to the notes given. It is true the surety in a case of this kind, on payment of the notes, if the principal was solvent, if insolvent before doing so, might claim the right of substitution to the rights of the creditor, that is, to his lien, and having the property sold for his exoneration or reimbursement; but this right is in affirmance of the contract, and does not involve the right to disaffirm it. We see no ground, as we have said, on which he can claim to do this, and do not feel called on to go into the matters discussed before us. The question we have settled is conclusive of the rights of this complainant in this matter, and it must be so decreed. The complainant will pay the costs of this court; the costs of • the court below will be paid as directed by the chancellor.