majority">Porter, J.

delivered the opinion of the court.

The defendant in the year 1820, became surety for one Brown, who purchased four slaves at a judicial sale of the property in community between a certain John Andrus and the heirs of his deceased wife. The last instalment of the *50debt became due in April, 1823. In 1825, Andrus assigned the debt to Luke Lesassier. Previous to his doing so, however, Lesassier was informed that the sale was not binding on Brown; and that the latter intended to bring an action of rescission. He communicated this information to Andrus, and the slaves on examination being found subject to the objections which the vendee made against them, it was agreed between the parties that they should be returned, and the sale cancelled. The property according to the agreement was delivered back to the vendor, but before the act of rescission could be passed, or at least before it was passed, Brown the vendee died. Lesassier in the meantime had obtained an assignment of the debt due by Brown to Andrus, and by agreement, between him and the curator of Brown’s estate, suit was permitted to be commenced, to be carried on to final judgment; and execution issue on it, in order to secure Lesassier’s debt, and enable the parties legally to divest Brown’s estate of its title to the slaves. The execution was accordingly levied on these slaves, then in the hands of Andrus the vendor, and they were sold at public auction, for a price hardly amounting to one-third of the original purchase. The defendant hearing of these transactions applied to Andrus the vendor for a discharge; he answered that he had no claim on the defendant, but that Lesassier the assignee had the business in hand and was authorised to settle it. Application was accordingly made,to Lesassier, who gave to the defendant a full discharge of all claims which he, Lesassiér,- had in consequence of the assignment already mentioned. This was in the year 1827. In the year 1830, the creditors of John Andrus the vendor, having obtained judgment against him, levied their execution on the debt due by the defendant as surety to Brown. The defendant gave public notice that he had a discharge for it'; and the notice was made known to the bidders on the day of sale. It was, however, purchased by the plaintiff for one hundred and fifteen dollars. The sum now claimed from the defendant amounts, with interest, to nearly four thousand dollars.

A part of these facts are proved by parole evidence and a variety of objections to the legality of its introduction and its *51effect have been offered to this court. We have considered them and were prepared to express an opinion on them. But on examining the record an objection has presented itself which cannot be got over.

The debt advertised to be sold, is described in these words: “A certain supposed debt due by Hypolite Chretien to Andrus and Lesassier, as security for a certain Stephen Brown, at the sale of the estate of John Andrus and his wife Charlotte Hanchette, deceased, made on the 27th January, 1820, at which sale the said Brown became the purchaser,” &c. &c.

In the sheriff’s deed under which the plaintiffs claim, the following description is given of it: “ All that certain supposed debt due at the sale of the estate of the said John Andrus and his wife Charlotte Hanchette, by Hypolite Chretien as security for a certain Stephen Brown.”

It is thus seen that a debt due by a surety was alone sold, and this could not be legally done. The obligation of a surety in the reason of the thing, and by the express definition given in our code, is accessory to the principal obligation, and must follow it. Hence, whoever has the right to the principal, has the right to that which flows from it. They cannot be divided. The obligee in this instance could not have retained the principal debt, and assigned over his claim on the surety, no one claiming under, or through him can have greater rights. Were we to hold this sale to be valid we would present a case never before seen, or thought of; one where the surety could owe one man and the principal another. The circumstance of the estate of the principal being insolvent makes no difference. Insolvency does not destroy the obligation. If it did, it would follow the surety was discharged.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

O* Martin, J. was prevented by indisposition, from attending at this term.

Citation profile

How this case has been treated — in progress