
    William H. Dillingham vs. William Jenkins.
    The obligation of the contract of a surety arises from the consideration received by his principal; and if the principal be bound the surety is also, unless there has been some variation in the terms of the contract; where therefore, a principal had, by promises to an assignee, induced him to purchase his and his surety’s note, and thereby precluded himself from setting up a failure of consideration of the note as to the payee; held, that the surety was likewise precluded from making the defence.
    In the case of the sale of the real estate of a deceased person, the record of the probate court must show that all the proceedings were regular, and that the citations were published according to law; such degree of strictness is not however necessary in the sale of chattels, which go to the administrator to be administered; in such case even though the record do not show that citations were published according to-law, the sale will he valid; and that though it be a lease for ninety-nine years which is sold.
    A lease for ninety-nine years is of no higher dignity than a lease or term for one year; both are mere chattels, and go to the administrator to be administered.
    In error from the circuit court of Amite county; Hon. Van Tromp Crawford, judge.
    William H. Dillingham sued William Montgomery and. William Jenkins in an action of debt upon a bill single for $5000. A trial was had, and verdict rendered for Dillingham for $4052 48, and judgment given accordingly; that judgment, however, was reversed. A full report of the case and of the facts elicited on the first trial will be found in 3 S. & M. 647.
    On the second trial, Montgomery having died, the cause was submitted to the jury as to Jenkins alone, and they found a verdict for $702 59¿-, in favor of Dillingham.
    On the second trial the testimony in substance was this:
    The bond sued on was in these words :
    “ $5000 00. On or before the first day of January, one thousand eight hundred and forty-one, we, or either of us, promise to pay W. M. Taylor, or order, five thousand dollars, for value received of him; as witness our hands and seals, April 8th, 1839.
    “ William Montgomery, (seal).
    “Attest, Jas. Jenkins, (seal).
    “ S. R. Davis. William Jenkins. (seal).”
    Indorsed, “Pay the within to William H. Dillingham, and I am holden,.as indorser, without demand and notice.
    “ Wm. M. Taylor.”
    Dillingham then read to the jury the answer of Montgomery to a bill of discovery filed against him; in which bill for discovery the plaintiff, among other things, alleged, that the defendant had urged him not to sue, and that, if he would not, he would pay the debt out of the crop of 1841, and that the plaintiff forbore to sue until April, 1841; in the answer to this bill for discovery, defendant Montgomery admitted that he wrote the following letter to the plaintiff: —
    “Oakland Grove, April 14, 1840.
    “ Mr. Dillingham, — Sir: By the request of Mr. Taylor, I drop you a line, to inform you that the note which he holds on me is just, as it stands, with a credit on it, on the back of the note, and yet subject to another credit, of eighty-nine dollars and fifty cents; and that I consider the note good against me for the amount it calls for when due; and further, I expect to make satisfactory arrangements with the holder of the note when it falls due. Yours, &c.
    “ William Montgomery.”
    He also admitted that the plaintiff had informed him of his purchase, and that he had expressed himself to the plaintiff as satisfied. He admitted that he had promised to apply the crop of 1841 to the payment of the note; that after the note became due, he asked the plaintiff not to sue, and then made the promise about the crop of 1841; and that the plaintiff refrained bringing suit until April, 1842; and that the above letter was written with reference to the note sued on; but that all these promises were made in the belief that Taylor had performed the consideration for which the note was given, which the respondent believed had not been done.
    
      It was then proved by the defendant, that $3000 of the bond was given for the purchase by Montgomery of a lease of a school section of land, being a sixteenth section, which Stephen H. Strong, in his lifetime, had leased for ninety-nine years, and to which the trustees of the school section had given him a bond to make him a title. Strong died, and his administrators applied to the probate court to sell the leasehold interest; the court ordered the sale; and the administrators sold it and reported the proceeds of sale to the court; but the records of the probate court did not contain any evidence of the publication of citation or notices to those interested in the land as required by the statute.
    The administrators of Strong made a written assignment of the bond of the trustees, to the purchaser, Reuben H. Taylor, in which assigment they conveyed “ all the right, title, and interest of the estate of the said S. H. Strong, deceased, and of ns as administrators aforesaid,” in the said sixteenth section of school lands, to Taylor.
    Reuben S. Taylor on the bond, assigned and set over to William M. Taylor, “ his heirs and assigns all my right, title, claim, and interest to the land described in the within and foregoing bond, made by S. H. Strong, and assigned to me by his administrators.”
    William M. Taylor, for the sum of $3000, made a similar assignment to Montgomery.
    After the defendant had closed his testimony, the plaintiff proved that Montgomery had been put in possession of the land, and had been in quiet possession until his title thereto was sold; and that his vendee had taken possession and been in peaceable and quiet possession ever since.
    This was all the testimony; the plaintiff moved for a new trial, which was refused, and after the judgment was rendered, Dillingham prosecuted this writ of error.
    
      Montgomery and Boyd, for plaintiff in error.
    This is the same case which was before this court at a former term. A full report of it will be found in 3 S. & M. 656.
    
      Since,the decision in this court, Montgomery has departed this life, and that has produced the only change we can discover in the record.
    The jury, on the second trial, found a verdict for Dilling-ham for $702 59|. This could only have happened by allowing the defendant a credit on his note for the amount of the supposed value of the 16th section.
    The opinion of the court in the report above referred to, settles that point and every other connected with the present controversy. Until that opinion is changed, Dillingham cannot be affected by any equities or assets existing between the makers of the note and the payee. The court therefore erred in not granting him a new trial.
    There is a bill of exceptions, in the present record, taken to the admission of testimony during the trial, on which the plaintiff in error might safely rest his case. After he had adduced the answer of Montgomery to the bill of discovery, admitting the consideration of the note, and acknowledging the letter appended to the bill, it was not competent to introduce any testimony on behalf of the defendants, showing a different consideration or a failure of consideration. The defendants could not impeach their own admissions. And in admitting such testimony, the court erred. It is probable, from the finding of the jury, that this very ruling of the court produced the result, of which Dillingham complains. The jury must have thought that the consideration of the note, in part, was the absolute sale by fee simple title, of the 16th section, and not the mere bond for title, which was admitted by Montgomery. And under this impression they doubtless considered they had a right to deduct that part of the consideration from the amount of plaintiff's demand.
    Their verdict, even on this view, was rather strange, because it was proved on this trial, though not on the former, that Montgomery had been let into possession immediately after his purchase, and had so remained till he had sold out his interest in this very section, and his vendee still remained in possession undisturbed, and without interference from any grantor. On this first bill of exceptions, then, the case would seem as clear as on the second, which relates to the motion for a new trial.
    
      J. M. Smiley, for defendant in error.
    This case is, the defendant relies on a failure of consideration, for which the bill single was executed, as to the sum of $>3000, the price of the sixteenth section of land, in Township 3, of Range 3, east; because the order of the probate court of Amite county, granting leave to the administrators of Stephen H. Strong to sell said sixteenth section, was void for want of jurisdiction. The record of the probate court shows that no citation or publication was made, as required by law. Campbell et al. v. Brown et al. 6 How. 106; Gwin et al. v. MeCarroll, 1 S. & M. 351.
    The bond of the trustees of school lands for titles to Strong, could not be sold by the administrators of Strong, under an order to sell the land. And the transfer of the bond by the administrators was not a transfer of the land, but of a chose in action, which is not in accordance with law. The bond of the trustees of school lands to Strong was assigned by his administrators, not in payment of Strong’s debts, or in distributing his estate, and is void.
    The several assignments of the bond for titles are on detached scraps of paper; in unintelligible language, and therefore void for uncertainty. For this reason the consideration of the bill single as to the sum of $3000 has failed.
    But it is insisted that by the former decision of this case the defendant is precluded from setting up a failure of consideration. It is not controverted that the statements of Montgomery, the principal, (who is since dead, and not now a defendant,) to Dillingham, were sufficient to estop him from setting up a failure of consideration, but, with due deference to the previous opinion of the court, we deny that Jenkins, the security, is thereby estopped.
    It is decided, in the case of Hamer v. Johnson et al. 5 Howard, that the statement of the maker of a note, that the note was good and would be paid, to a person about to purchase the same, operated as a waiver of the defence; and the reason of the decision is, that such statements, made by the maker of a note to the purchaser, “would be a deceit upon him,” and that he should not take advantage of his own wrong. The reason is clearly on the ground of fraud, perpetrated, either knowingly or ignorantly, on the purchaser of the note. It is contrary to law and good morals, to visit the consequences of fraud upon any other than the guilty. And it is therefore inconsistent with the principles of justice, morality, and law, that Jenkins, who answers that he was wholly ignorant of all the transactions between Dillingham and Montgomery, should be deprived of a valid and legal defence, by the fraud of Montgomery. The law will not permit the deceit of Montgomery to operate to the injury of Jenkins, any more than to the injury of Dillingham.
    In the case of Honoré v. Dougherty, 4 Bibb, 280, the statements of the security were held not to bind the principal: If the security in a case like the present could not bind the principal, it would seem reasonable that the principal could not bind the surety, especially if they are' to be considered as joint contractors in law.
    In the case of Bell v. Morrison, 1 Peters, 355, it is ruled that one partner can bind the others during the continuance of the partnership, but not after the dissolution of the partnership, on the ground that each partner is the agent of the others, but when that agency ceases, by the dissolution of the partnership, the promise of one will not bind the others, even in relation to partnership debts. In the same case Judge Story says, that the promise of one joint debtor will not take a case out of the statute of limitations, as to the others, and uses this forcible language:
    “ If such a principle be correct,” that one joint debtor can bind others, “the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt, at the time when such acknowledgment was made.”
    This decision of the highest judicial tribunal of the country is deemed conclusive.
   Mr. Chief Justice Shamey

delivered the opinion of the court.

This case is before us a second time, having been first brought up by the defendant below, against whom there was a verdict for $4052. The judgment was reversed on account of an improper charge given by the court. On the same testimony a second jury rendered a verdict for the plaintiff for only $702, ■and he now brings the case up on exceptions taken during the progress of the trial, and on exceptions taken to the decision of the court in overruling a motion for a new trial.

The action was founded on a writing obligatory, made by Montgomery and Jenkins, payable to William M. Taylor, and by him transferred by indorsement to Dillingham, who took the assignment after he had notified Montgomery that a negotiation for a transfer was on foot, and after having received assurances frQm Montgomery that the debt was justly due and should be paid, subject to certain previous payments. An effort was made on the trial to establish a failure of consideration, and it is presumable that on this ground alone the jury rendered a verdict for an amount so much less than that recovered on the first trial.

The history of the consideration is briefly this; Stephen H. Strong, in his lifetime, had leased for ninety-nine years a sixteenth section of land, which was appropriated by congress for the use of schools. He received no other evidence of title than a bond from the trustees of school-lands to make him a title. After Strong’s death his term in this land was sold by order of the probate court, and Reuben Taylor became the purchaser, and took from the administrators an assignment of the bond which had been given to Strong. Reuben Taylor sold the land, and assigned the bond to William M. Taylor, who sold to Montgomery for $3000, and assigned the bond to him; Montgomery executed the note sued on, with Jenkins as surety, in which is embraced the amount of purchase-money, besides some other consideration, amounting in the whole to $5000, about $1500 of which had been paid before the transfer to Dillingham. It seems that Montgomery took possession of the land, and has held it ever since, without molestation.

In order to show failure of consideration, witnesses were examined to prove the declarations of Taylor, the payee, that part of the consideration of this note, was the sixteenth section, which Montgomery had purchased. This testimony was objected to. In the former decision, (3 S. & M. 647,) we had occasion to examine fully the effect of Montgomery’s declarations to Dillingham, before the assignment was taken, and we then decided, on the authority of our previous decisions, that Montgomery had waived any failure of consideration, and could not be permitted to set up such a defence, after having induced Dillingham to take the assignment. But Montgomery has died since, and Jenkins is now the only defendant. It is insisted that he is a mere surety, and is not precluded by the declarations of Montgomery from setting up failure of consideration. The consideration of a contract does not pass to the surety. His obligation arises from the consideration received by his principal. The contract of a surety is accessory to the contract of his principal, and if the principal be bound the surety is also, unless he is discharged by some variation in the terms of the contract; but if there is no change in the risk he took upon himself, he is not discharged. The effect of Montgomery’s admission was, that he had received a consideration, or if he had not, he waived any objections on that score, and admitted the validity of the contract. The obligation of Montgomery was the inducement to the surety, and we cannot perceive how the surety can avail himself of a want of consideration; when his principal cannot. In suretyships there is a contract between the principal and his surety. Montgomery is still bound on this contract to Jenkins, as well as on the original obligation. We do not think, therefore, that the admission of Montgomery had the effect to bind Jenkins. The validity of Montgomery’s contract is what binds him. If this view of the subject be correct, all evidence which went to impeach the consideration of the note was improperly admitted. But conceding that this is a doubtful point, the question is, did the defendant succeed in proving a failure of consideration ? He relies upon a supposed defect in the proceedings in the probate court, in granting an order to sell the land, without proof that citations had been published according to law. It is true that in such cases the record must show that the law has been strictly pursued when land is sold by an administrator. But we have never decided that such a degree of strictness was necessary in the sale of chattels, which go to the administrator to be administered. The thing sold was a term for years, which is a chattel and goes to the administrator, and not to the heir. It must be distributed as personal property. A lease for ninety-nine years is of no higher dignity than a lease or term for one year. The consequence is, a failure of consideration was not established, and a new trial ought to have been granted.

Judgment reversed, and new trial awarded.  