Burns v. Parks

Tripue, Judge.

It Avould scarcely be claimed that if the decree had been taken by consent of all 'parties, allowing other judgment creditors of the estate to take the Avhole assets, on the ground that they had a priority, the security Avould thereby have been discharged, had it turned out to be the fact, as ascertained after-wards, that such priority did not exist. If a plaintiff in execution, Avhich has been levied on personal property of the principal, dismiss the levy by the consent of the surety, it does not operate a discharge of the surety. It would be difficult to conceive of anything which a creditor could do that Avould release the surety, Avhen it Avas done by the surety’s consent. If there be fraud, artifice or deception, practiced by the creditor, the question Avould be different. The consent decree in this case does not vacate or set aside the judgment or execution in favor, of the plaintiff. Its legal effect is simply that it could not be enforced against the assets of the estate, the ground assigned therefor, by consent of parties, being that the consideration of the debt was a slave. The reason for the decree is not a good legal reason; but both parties consented that it should be taken — the surety as well as the creditor. It is no more than if the assets had been decreed to be paid to some other creditor, on some ground which the parties thought gave it priority, but Avhich really did not. Besides, the surety took a benefit by this decree. He was an heir-at-law of the party for Avhom he was security. By consenting with this creditor that'his debt could not be enforced against the estate, his share therein was increased. It would be hard that a surety, Avho had assets of his principal in his hands, could set up that they were not subject to the debt for which he Avas bound, and then claim that because the creditor concurred with him, and he had paid them out, he AA'as thereby discharged; and especially where his share in such assets Avas greater by setting up and sustaining such defense than it otherwise Avould have been.

Judgment affirmed.