Agnew v. Merritt

10 Minn. 308

• Court: Supreme Court of Minnesota
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court —

Wilson, C. J.

— A wife mortgaging her separate property for the debt of her husband, is entitled, to all the rights and remedies of a personal surety.

A contract, therefore, by the creditor with the principal debtor, (without her assent,) to extend the time of the payment of the money actually due, discharges her and releases her property from the lien of the mortgage.

Whether the facts proven in this case would constitute such a contract may admit of some doubt.

The execution by the principal debtor and the acceptance by the creditor of a note payable at a future day for and on account of the debt, would &eem to be prima facie a contract to extend the time oí payment. 2 Am. Leading Cases, 420, and eases there cited.

But as this case must be decided against the plaintiff on another ground, we do not deem it necessary here to decide this question.

The obligation not to give time to the principal depends upon a knowledge of the real character in which the surety entered into the contract.

If, therefore, the fact of the suretyship does not appear on the face of the contract, the surety will not be discharged from liability in consequence of a variation of the contract, if the creditor, at the time of the act complained of, had not notice that the relation of suretyship existed; and such notice is not presumed in favor of the surety, but must be proven. Gahn vs. Niemcewicz, 3 Paige, 650; 11 Wend., 323; Wilson vs. Foot, 11 Metcalf, 285; 2 Am. Lead. Cases, 411, and cases cited; 3 Lead. Cases in Eq., 546, and cases cited.

In this case there is neither allegation nor proof of such notice on part of the defendants or their assignor.

The judgment of the Court below is affirmed.