
    Harkleroad v. Waterhouse et al.
    1. Surety: on note for money to buy land: agreement for mortgage: SALE OF LAND BY PRINCIPAL: SUNDAY CONTRACT. H. became surety for T. on a note given for money borrowed to buy the land in question, and be'was to have security for his liability by a mortgage on the land. The mortgage, however, was never made, but T. gave his note to H., with M. as surety, for the amount of H.’s liability, and this was accepted in lieu of the mortgage. Afterwards T. sold the land to M., and H. was obliged to pay the note which he had signed with T., and in this action he seeks to recover on the note given him by T. and M., and to have the judgment decreed to be a lien on the land. But the note sued on was executed on Sunday, as was also the agreement to accept it in lieu of the mortgage, and, therefore, no recovery could be had on the note, and the original agreement to give the mortgage remained unaffected. But, as there was no evidence to show that M. purchased the land with knowledge of T.’s agreement to execute the mortgage, nor to show that M. was to pay T.'s debt to H. as a part of the purchase price, held that judgment was properly rendered against T. for the money paid for him by H. as surety, but that it was error to render judgment against M., and to make the judgment a lien on the land.
    
      Appeal from Louisa District Court.
    
    Friday, March 19, 1886.
    Action to establish an alleged equitable lien, and to foreclose the same. There was a decree for the plaintiff, and the defendants appeal.
    
      E. W. Tatloele, for appellants.
    
      T. J. Truloclc, for appellee.
   'Adams, Oh. J.

-The plaintiff became surety for the defendant Taylor Waterhouse for money borrowed, with which the latter purchased the land in question. It is averred by the plaintiff, and we think that the evidence shows, that be was to have security for his liability by a mortgage on the land. The mortgage, however, never was given, and the plaintiff was obliged to pay the money borrowed. In tbe meantime Taylor Waterhouse sold and conveyed the land to the defendant Moses T. Waterhouse. Prior to that time, when the plaintiff was demanding from Taylor Waterhouse the execur tion of a mortgage, as had been agreed, Taylor, instead of giving a mortgage, gave him a promissory note signed by Moses Waterhouse as surety. This note, we think, was accepted by the plaintiff in discharge of Taylor Waterhouse’s agreement to give him a mortgage. This action was brought to enforce payment of the note, and to enforce the agreement to execute the mortgage. It is averred by the plaintiff, among other things, that Moses Waterhouse, at the time of the conveyance-to-him of the land, had full knowledge of his vendor’s agreement to give him a mortgage upon the land; and it is averred, also, that Moses Waterhouse agreed with his vendor, Taylor Waterhouse, that he would pay the plaintiff, and that such payment should be regarded as a payment, to that extent, of the purchasemoney of the land. The note signed by Taylor Waterhouse and Moses Waterhouse was shown to have been executed upon Sunday, and that fact was set up in- defense to it. The court below sustained the defense, and held the note to be void; but in holding it to be void the court held that the agreement to accept the note in discharge of the agreement of Taylor Waterhouse was also void, and that that agreement remained unaffected. The court found that the plaintiff’s averments were proven; that Moses Water-house had full knowledge of his vendor’s agreement to give the plaintiff a mortgage upon the land, and took the land subject to the agreement; and also that Moses Waterhouse agreed with Taylor, at the time of the purchase from him, to pay the plaintiff the debt in question; and that such payment was to be regarded as a payment to that extent of the purchase money of the land. The court accordingly rendered judgment against both defendants, and charged the same as a lien upon the land, and decreed a foreclosure.

It is insisted by the appellants that the evidence does not show that Moses Waterhouse took the laud with knowledge of his vendor’s agreement to give the plaintiff a mortgage upon the land, and does not show that Moses was to pay Tajrlor’s debt to the plaintiff in consideration of the purchase. To this we have to say, after a careful examination of the evidence, that we think that the appellants’ position must be sustained. As to Moses’ knowledge of the agreement to give a mortgage, we think that there is no evidence at all. There is some evidence tending to show that he agreed to assume and pay the debt to the plaintiff in payment of the purchase money of the land; but only one witness so testifies, and both Taylor and Moses Waterhouse testify to the contrary. It seems probable that Moses was to pay the purchase money by making payments upon notes signed by him as surety for Taylor. He did, indeed, pay off a part of the Sunday note given to plaintiff, and paid off another note given by Taylor to one Henry Harkleroad, upon which he (Moses) was surety; and we think that he applied all the purchase money according to his agreement; but there was not enough to pay the plaintiff in full, and we do not think that he ever agreed to pay him in full. There is evidence tending to show that he talked of paying the Sunday note in full if he could have time, but that, we think, was when he thought that he was liable upon it as surety. Such being our view of the evidence, we have to say that we think that the court below erred in rendering a decree against Moses Waterhouse for the debt in question, and erred in charging the same as a lien upon the land.

The decree against Taylor Waterhouse appears to be correct, and should be allowed to stand, but not as a lien upon the land.

Modified and Affirmed.  