Richards v. Seward

Opinion by

Judge Pryor:

The judgment is erroneous, as there is an entire absence of evidence showing that Pearce and Claypool were the sureties on any of the notes but one, and on that Claypool appears as the surety. The mere recital in the mortgage is no evidence of that fact, and as the pleadings stood the appellees should have been postponed in the payment of their claim until the debt of the appellants was satisfied.

The mortgage is sufficiently definite, as it expressly states the amount for which these parties were bound, and the failure to describe the notes or the parties to whom payable does not invalidate that instrument, if in fact the liability existed. The mortgage expressed that it was to secure the appellees in or about the sum of $1,900, and this was sufficient to put the appellants on inquiry to ascertain the character of the claims for which the security was given.

The appellees, on the return of the cause, should be permitted to show their relation to the notes. If sureties, and if the debts were contracted in good faith, we see no reason why they should not be given a preference in the distribution of the proceeds of sale.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.