Jasper County v. Shanks

61 Mo. 332

• Court: Supreme Court of Missouri
• Decided: October 15, 1875
• Status: Published

Opinion

Sherwood, Judge,

delivered the opinion of the court.

The defendant, Shanks, was the principal, and the defendant, Ogden, was the surety in a certain bond executed by them to Jasper county, for the use and benefit of the fund arising from the sale of swamp lands in that county, and this action is brought for the collection of that bond.

I.

The defendant, Ogden, could not exonerate himself from his liability as the surety of his principal, Shanks, by giving-notice to the county in writing- to bring suit on'the bond. This point was expressly passed upon in Cedar County vs. Johnson et al. (50 Mo., 225), and the conclusion reached that the act respecting sureties and their exoneration (Wagn. Stat., 1302), has no application to cases of tin's charaeter, and <! does not refer to obligations given for public uses.”

II.

The parol evidence offered by the surety to show that the property mortgaged by Shanks, to secure the debt due on the bond, had been sold under forclosnre, and that .one Burch had become the purchaser of the mortgaged property at a price sufficient to pay the debt, was properly rejected. It was not shown that the sale was a valid one ; that it was made during the session of the proper court, or that it was ever completed, or the money bid thereat paid-.- Under such circumstances there was no tendency whatever in the excluded evidence to support the defendant’s plea of payment.

Judgment affirmed.

All the other judg’es concur.