The opinion of’ the court was delivered by
Kennedy, J.
It is evident, in this case, that the plaintiff was entitled to be first paid the amount of the judgment which had been assigned to him by John Bell, Senior, out of the moneys arising from the sale of Dennis Cain’s land, against whom the. judgment was, unless the court below were right in their direction to the jury, as to the effect of the release. This judgment was entered qn the 16th of January, 1S26, with a stay of execution, until the 12th clay of October then next following. The judgment of the defendants, under, which they claim the money, was not entered until the 31st of May, 1S28. Consequently tbe judgment under which the plaintiff claimed, was the'first lien upon the land sold by the sheriff; and could not cease to continue a lien, without some, act of the plaintiff or his assignor annulling it, within less than fiye years, during which time the sale of the land was made. Indeed, tbe revival of this judgment by Dennis Cain, the defen-, dant, at June term, 1828, would have been sufficient to, have continued the ljen of ij five years lo.nger from that time.
In the abstract it is certainly true, and a' principle of law-well .settled, that if a creditor release one of' two joint debtors, whether they be indebted upon a simple contract, bond or judgment, it will also be a discharge of the other from the debt. Why is it so? bo-i cause otherwise the whole burden of the debt would be thrown ppon one of them instead of both, which would be directly contra,^ [61]*61ty to their undertaking and contract. Upon the same principle it has been held, that if the obligee in a bond, given to him by two or more jointly, tear off the seal of one of the joint-obligors, or in any manner cancel the bond as to one of them, it discharges all the rest. It was in its concoction, the joint bond of the whole; but the moment it is cancelled by the obligee, as to one of the obligors, it ceases to be the bond or deed of all. In short, it ceases to be the same bond, if bond at all it can be called. By the original contract, under which it was given, it was agreed, and made to be, the joint obligation of all; and .without a new agreement between the same parties, it cannot be made the bond of a less number; at least, it cannot be changed and made the bond singly of anyone or more of them, short of the whole number, without their consent. To make it the bond of one instead of two, necessarily increases the weight of the obligation; and no man is to - have an obligation imposed upon him without his consent. But an obligee or covenantee may release one of two several obligors named in a bond, or one of two several covenantors in a deed, or cancel the bond or deed as to one, by tearing off his seal without the consent of the other, and for this reason, too, that it does not increase the responsibility of the other obligor or covenantor, or change in any manner the nature of his obligation or covenant. It was the bond or deed of each singly before, and the obligee and covenantee had a right to look to either singly for the fulfilment of it, and the one, therefore, can in no wise be injured by cancelling the bond or deed as to the other. See Mathewson’s case, 5 Co. 44.
So it is well settled, that if the name of one of two or -more joint-obligors be stricken out br erased, or his seal torn from a bond by the consent of the obligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it; but shall from that time be the bond of the others. And for what reason? Because it was their agreement that it should be so. Their agreement alone, in this respect, without more, is equivalent to a new, and re-execution or re-delivery of the bond, as their act and deed. Amere formal delivery or re-delivery of it is unnecessary. Barrington v. The Bank of Washington, 14 Serg. & Rawle, 424. Speaker v. The United States, 9 Cranch, 28.
And this is upon the principle that they have assented to it, and if they were not hold to be bound by the bond in this instance after-wards, it would be a reproach upon the law and the administrationpf justice; because it would be to permit the remaining joint obli-. gors to violate most grossly their own agreement, and thereby to commit a most palpable fraud upon the obligee, and cheat him out of-his money.
Now apply these principles to the case before the court, and can fhere be any doubt that t]ie release ought 1o operate otherwise, dr [62]*62have a different effect from what was expressly agreed on and intended by the parties. To the release in this case, the judgment creditor who gave it, the surviving defendant in the judgment- and the administrator of the deceased defendant, were parties; and the release was given in pursuance of an agreement made hy-and between them. . That Dennis Cain, the principal debtor, ought to be bound by his - agreement, can admit of no doubt; and I presume that the court below thought so; for in giving their opinion to the jury, that the release was a discharge of the judgment, they qualify it by saying, “as respects the present defendants.” But why shall it be a discharge of 'the judgment in favor of the present defendants? They were not parties to it; had no interest in it; and w'ere not bound by it, or responsible for the amount of it, in any way. The release given by the plaintiff in this, case, imposed no obligation upon the defendants; and was not intended to take from or deprive them of any right with which they were vested, or in the least to diminish the security which they had upon Derinis Cain for the payment of their judgment; nor can it have such an effect to decide that the lien of the plaintiff’s, judgment continued in full force upon the real estate of Dennis Cain, against the defendants, and all the world,' notwithstanding the release. It is impossible to conceive in what way the defendants, could have been prejudiced by this release, unless, indeed, under some circumstances, it might have been in their power to have compelled the plaintiffs to look to the real estate of John Cain for his debt, so as to leave them the advantage of securing their judgment out of the estate of Dennis Cain, or by paying or tendering to the plaintiff, the amount of his judgment, entitle themselves to be subrogated to his rights, in the collection of it; but under no circumstances that could have occurred, could- this have been done. On the contrary, had John Gain continued to live, and been compelled to pay the plaintiff’s judgment, I apprehend, that in equity, he would have been entitled to the benefit of it; not'only against Dennis Cain, the principal debtor, but against the present defendants, for the purpose of reimbursing himself; and upon this principle, were he now living, after having paid the amount of it, would be entitled to-claim it, out of the moneys arising from the sale of Dennis Cain’s real estate, in preference to the defendants. Fleming v. Beaver, 2 Rawle, 131. Cheesborough v. Millard, 1 Johns. Ch. Rep. 413. Hays v. Ward, 4 Johns. Ch. Rep. 129. Burrows v. McWharnet, 1 Desaus, 409. Miller v. Pendleton, 4 Hen. & Mundfr. 436. Hence, in no correct view that can be taken of this case, can it be sustained, that the defendants are placed in a worse situation than they stood before, by giving full effect to this release, according to the agreement and the wishes of the parties at the time of making it.
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The opinion of’ the court was delivered by
Kennedy, J.
It is evident, in this case, that the plaintiff was entitled to be first paid the amount of the judgment which had been assigned to him by John Bell, Senior, out of the moneys arising from the sale of Dennis Cain’s land, against whom the. judgment was, unless the court below were right in their direction to the jury, as to the effect of the release. This judgment was entered qn the 16th of January, 1S26, with a stay of execution, until the 12th clay of October then next following. The judgment of the defendants, under, which they claim the money, was not entered until the 31st of May, 1S28. Consequently tbe judgment under which the plaintiff claimed, was the'first lien upon the land sold by the sheriff; and could not cease to continue a lien, without some, act of the plaintiff or his assignor annulling it, within less than fiye years, during which time the sale of the land was made. Indeed, tbe revival of this judgment by Dennis Cain, the defen-, dant, at June term, 1828, would have been sufficient to, have continued the ljen of ij five years lo.nger from that time.
In the abstract it is certainly true, and a' principle of law-well .settled, that if a creditor release one of' two joint debtors, whether they be indebted upon a simple contract, bond or judgment, it will also be a discharge of the other from the debt. Why is it so? bo-i cause otherwise the whole burden of the debt would be thrown ppon one of them instead of both, which would be directly contra,^ [61]*61ty to their undertaking and contract. Upon the same principle it has been held, that if the obligee in a bond, given to him by two or more jointly, tear off the seal of one of the joint-obligors, or in any manner cancel the bond as to one of them, it discharges all the rest. It was in its concoction, the joint bond of the whole; but the moment it is cancelled by the obligee, as to one of the obligors, it ceases to be the bond or deed of all. In short, it ceases to be the same bond, if bond at all it can be called. By the original contract, under which it was given, it was agreed, and made to be, the joint obligation of all; and .without a new agreement between the same parties, it cannot be made the bond of a less number; at least, it cannot be changed and made the bond singly of anyone or more of them, short of the whole number, without their consent. To make it the bond of one instead of two, necessarily increases the weight of the obligation; and no man is to - have an obligation imposed upon him without his consent. But an obligee or covenantee may release one of two several obligors named in a bond, or one of two several covenantors in a deed, or cancel the bond or deed as to one, by tearing off his seal without the consent of the other, and for this reason, too, that it does not increase the responsibility of the other obligor or covenantor, or change in any manner the nature of his obligation or covenant. It was the bond or deed of each singly before, and the obligee and covenantee had a right to look to either singly for the fulfilment of it, and the one, therefore, can in no wise be injured by cancelling the bond or deed as to the other. See Mathewson’s case, 5 Co. 44.
So it is well settled, that if the name of one of two or -more joint-obligors be stricken out br erased, or his seal torn from a bond by the consent of the obligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it; but shall from that time be the bond of the others. And for what reason? Because it was their agreement that it should be so. Their agreement alone, in this respect, without more, is equivalent to a new, and re-execution or re-delivery of the bond, as their act and deed. Amere formal delivery or re-delivery of it is unnecessary. Barrington v. The Bank of Washington, 14 Serg. & Rawle, 424. Speaker v. The United States, 9 Cranch, 28.
And this is upon the principle that they have assented to it, and if they were not hold to be bound by the bond in this instance after-wards, it would be a reproach upon the law and the administrationpf justice; because it would be to permit the remaining joint obli-. gors to violate most grossly their own agreement, and thereby to commit a most palpable fraud upon the obligee, and cheat him out of-his money.
Now apply these principles to the case before the court, and can fhere be any doubt that t]ie release ought 1o operate otherwise, dr [62]*62have a different effect from what was expressly agreed on and intended by the parties. To the release in this case, the judgment creditor who gave it, the surviving defendant in the judgment- and the administrator of the deceased defendant, were parties; and the release was given in pursuance of an agreement made hy-and between them. . That Dennis Cain, the principal debtor, ought to be bound by his - agreement, can admit of no doubt; and I presume that the court below thought so; for in giving their opinion to the jury, that the release was a discharge of the judgment, they qualify it by saying, “as respects the present defendants.” But why shall it be a discharge of 'the judgment in favor of the present defendants? They were not parties to it; had no interest in it; and w'ere not bound by it, or responsible for the amount of it, in any way. The release given by the plaintiff in this, case, imposed no obligation upon the defendants; and was not intended to take from or deprive them of any right with which they were vested, or in the least to diminish the security which they had upon Derinis Cain for the payment of their judgment; nor can it have such an effect to decide that the lien of the plaintiff’s, judgment continued in full force upon the real estate of Dennis Cain, against the defendants, and all the world,' notwithstanding the release. It is impossible to conceive in what way the defendants, could have been prejudiced by this release, unless, indeed, under some circumstances, it might have been in their power to have compelled the plaintiffs to look to the real estate of John Cain for his debt, so as to leave them the advantage of securing their judgment out of the estate of Dennis Cain, or by paying or tendering to the plaintiff, the amount of his judgment, entitle themselves to be subrogated to his rights, in the collection of it; but under no circumstances that could have occurred, could- this have been done. On the contrary, had John Gain continued to live, and been compelled to pay the plaintiff’s judgment, I apprehend, that in equity, he would have been entitled to the benefit of it; not'only against Dennis Cain, the principal debtor, but against the present defendants, for the purpose of reimbursing himself; and upon this principle, were he now living, after having paid the amount of it, would be entitled to-claim it, out of the moneys arising from the sale of Dennis Cain’s real estate, in preference to the defendants. Fleming v. Beaver, 2 Rawle, 131. Cheesborough v. Millard, 1 Johns. Ch. Rep. 413. Hays v. Ward, 4 Johns. Ch. Rep. 129. Burrows v. McWharnet, 1 Desaus, 409. Miller v. Pendleton, 4 Hen. & Mundfr. 436. Hence, in no correct view that can be taken of this case, can it be sustained, that the defendants are placed in a worse situation than they stood before, by giving full effect to this release, according to the agreement and the wishes of the parties at the time of making it. It was but a release, at most, of the real estate, late of John Cain, lying within Green [63]*63county, and owned by him at the time of entering the plaintiff’s judgment: for as to the personal liability, and all the other real and personal estate of John Cain, his previous death released all that from the payment of this judgment. * And if John Cain was not the owner of any land or real estate upon which this judgment operated as a lien, the release produced no effect whatever; for by law, the entire responsibility of paying, devolved upon Dennis Cain; and he being the real debtor, and John having been merely his surety, even equity would not compel payment of the debt, out of John’s estate in case of Dennis’ insolvency and inability to pay. The case of Millikin v. Brown, 1 Rawle, 391, and the insulated expressions of the judge who delivered the opinion of the court in that case, have been quoted and relied on by the counsel for the defendant in error. There is nothing in the principle decided in that case, nor yet any thing said by the learned judge who delivered the opinion of the court, when viewed in reference to the case then before the court, or when taken in connection with all that he did say, that will support or warrant the direction of the court below in this case to the jury. The judge who delivered the opinion of the court in Millikin and Broion, in speaking of the effect in law of a release by the creditor to one of two or more joint debtors, that it would be a release of all, whether so intended or not, has reference only to what was the intention of the releasor and the releasee. Because he is then speaking of those cases where the other joint debtors, not named in the releases, were not consulted or made parties to the arrangements upon which the releases were founded. And the reason which he there, in page S99, assigns, for the principle by him laid down, shows clearly, that he was speaking of those cases where releases to one of the joint debtors had been given, without consulting and obtaining the consent of the others. He says the foundation of it consists “in this, that where several persons have contracted together, and several of them are bound to one in a certain way, that one shall not, of his own accord, or by collusion with one of them, change their several responsibilities;” implying, necessarily, that when it was done by the consent of all concerned, the effect would, and ought to be, in accordance with the intention of the parties, whatever that might be.
The judgment of the court below is reversed, and a venire de novo awarded, if it should be thought necessary to call a jury again, after the decision of this court on the question of law; which seems to have been the only thing that was contested. With respect to the matters of fact, there does not appear to be any controversy.
Judgment reversed, and a venire de novo awarded.