State ex rel. Barnard v. Gott

Brent, J., delivered the opinion of the Court. This suit is brought upon the trustee’s bond of Adkisson, who had been appointed trustee by the Circuit Court of Baltimore City, to sell certain leasehold property, of which Mrs. Susan J. Barnard, of Allegany County, had died possessed, and to which her children were entitled in remainder. The bond given by Adkisson is also signed by Jackson C. Gott, the appellee. The question has been argued as to whether Gott, in this suit, is to be regarded as a security only, and is to have extended to him the rules of law applicable to parties standing in that capacity.

That he is security upon the bond in question, and is to be treated as such, there can be no doubt. Adkisson is the sole trustee, and the recitals in his bond, taken in connection with the law requiring-trustees to give bond with security, are quite sufficient to establish the fact that Gott signed it as security, and became bound in that capacity for the faithful performance of the trust by Adkisson. The appellant, Nathaniel Barnard, being one of the children of Mrs. Susan J. Barnard, instituted this suit against the trustee’s bond to recover the amount due him for his share of the property sold by the trustee. To his right of recovery the appellee, Gott, interposes a receipt under seal executed by Nathaniel Barnard, and also a promissory note of Adkisson at six months to Barnard for the balance due him.

No question of fraud arises in the case, nor is there any disagreement as to the facts. ³⁴⁶ The receipt and note were mutually interchanged between the parties — the note being retained by Barnard and the receipt sent or handed to Adkisson. After the maturity of the note, it not being paid by Adkisson, the note was returned to him and the receipt to Barnard. Both these papers were afterwards destroyed — and secondary evidence admitted of their contents. If their effect was to discharge the liability of the security, G-ott, upon the bond, it is very clear that their subsequent destruction by Barnard and Adkisson, some six months after, could not have the effect of restoring it.

The receipt was as follows : “ Barnard & al. 1 vs. > Cir. Ct., Balto. City— Barnard & al. ) Received-1873 from W. H. H. Adkisson, trustee, in the above mentioned cause, the sum of one thousand and thirty-three dollars and thirty-five cents, ($1033.35,) being my share in full of net proceeds of sale of Baltimore street property, as shown by auditor’s report filed in said cause. Witness my hand and seal. (Signed) Nathaniel Barnard, [seal.] Test: (Signed by witness.)” The security, Grott, contends that this paper, being under seal, is conclusive against the appellant’s right of action, and that it is virtually a discharge, of his liability as security upon Adkisson’s bond.

Instruments under seal are presumed to have been entered into after the most careful deliberation, and an importance and weight is thereby given to them, which they would not bear if they were unsealed. Instances of the difference in the rules of law that are applicable to the one and the other might be cited almost without number. In Story on Contracts, secs. 996 and 997, it is said “a release under seal, if given to one of several debtors, ³⁴⁷ jointly liable, enures to the benefit of all. But a release by parol to one debtor will not operate as a discharge to other debtors jointly liable, and can only be pleaded by the debtor to whom it was given. ***** But if a release be given under seal to one of two joint obligors with a parol agreement by the party not released, that he should remain liable, it is a discharge of both parties ; because the parol agreement cannot avoid the legal effect of the release under seal.” So a seal imports consideration and the obligation resting under it, can generally be discharged only by an instrument, under seal.

A part of a debt is not a satisfaction of the whole, yet if a part is paid and “thp