Evans v Bremridge
| Jurisdiction | England & Wales |
| Judgment Date | 11 December 1855 |
| Date | 11 December 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 741
HIGH COURT OF CHANCERY
Affirmed, 8 De G. M. & G. 100; 44 E. R. 327 (with note, to which add Ellesmere Brewery Company v. Cooper [1896], 1 Q. B. 81).
Co - sureties, Execution of Deed by one only. Alteration of Position. Equitable Relief.
EVANS V. BREMRIDGE 741 [174] evans v. bremridge. Dec. 7, 11, 1855. [Affirmed, 8 De G. M. & G. 100; 44 E. R. 327 (with note, to which add Ellesmere Brewery Company v. Cooper [1896], 1 Q. B. 81).] Co-sureties. Execution of Deed by one only. Alteration of Position. Equitable Relief. The relief granted in equity to one of two sureties in a deed, whose position has been altered by the acts of the creditor, is to have the deed delivered up to be cancelled. Where the creditor had prepared the deed, so as to shew, on the face of it, that it was intended to contain a joint and several covenant by two co-sureties, and had sent it in that form to be executed by one of such sureties, but had not procured the execution of it by the other surety, and had not informed the surety who had executed it of this fact; but, on the contrary, had afterwards written to him as " one of the sureties," the principal debtor having become insolvent: Held, that the surety who had executed the deed was entitled in equity to be relieved from all liability on the covenant. SemUe, that if a creditor release by deed one of two sureties, who are jointly and severally liable, the other is also discharged. The dicta to the contrary in Ex parte Giffard, 6 Ves. 805, have not been followed. In 1849 the Reverend George Elton applied to the Anchor Assurance Company for the loan of 210, and they consented to make such loan upon the terms that he should effect a policy of assurance with them upon his life for the sum of 400, and should assign the same to trustees for the company, and should procure two responsible persons to join him in covenants for the repayment of such loan and interest by instalments, and for the payment of the premiums on such policy of assurance. Elton thereupon applied to the Plaintiff to become one of such sureties, stating that one William Bradley would be the other surety; and the Plaintiff assented to such request. Elton thereupon gave to the company the names of the Plaintiff and of William Bradley, who was an uncle of Elton, as his proposed sureties for such loan; and the company consented to make such loan, and prepared a policy of assurance on the life of Elton, and also an indenture, dated the 22d of February 1849, and which purported to be made between Elton (who was thereinafter, for the sake of brevity, styled " the said borrower") of the first part, the Plaintiff and the said William Bradley (sureties of the said borrower) of the second part, and the Defendants, Bremridge, Wertheimer and Wilson, of the third part; and thereby, after reciting that by a policy of assurance of the Anchor Assurance Company, dated the 22d of February 1849, and numbered 1189, the funds and other property of the [175] said company were charged with and rendered subject and liable to the payment, to the executors, administrators or assigns of the said borrower, of 400 within three months after satisfactory proof of his decease, subject to the payment of the premium and to the provisoes and conditions in the said policy expressed; and that the said borrower had agreed with the said parties thereto of the third part for the loan of 210 on the security of an assignment of the said policy, and on the security of the joint and several covenants therein contained : it was witnessed that, in consideration of the sum of 210 to the said borrower paid by the said parties thereto of the third part immediately before the execution thereof, the said borrower assigned the policy to the said parties thereto of the third part, subject, nevertheless, to a proviso avoiding the indenture in case the said borrower, his heirs, executors or administrators, should pay unto the said parties thereto of the third part, their executors, administrators or assigns, the said principal sum of 210 by equal half-yearly instalments of 70 each on each succeeding 22d day of August and 22d day of February until the whole of the said principal sum should be paid, together with interest at 5 per cent, per annum on so much of the said principal sum as should from time to time remain unpaid, the first of such instalments to be paid on the 22d day of August then next (the covenants 742 EYANS V. BREMRIDGE 2K.&J.176. thereinafter contained being fully performed). And the said borrower and the said parties thereto of the-second part, for themselves, their heirs, executors and administrators, thereby jointly and severally covenanted with the said parties thereto of the third part, their executors, administrators...
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LIABILITY OF A JOINT SURETY AND WHERE OTHERS DID NOT EXECUTE DEED
...that such person, knowing the facts and being aware of his rights, had consented to waive his objection. Again, in Evans v. Brembridge (1855) 69 E.R. 741, one of two intended sureties executed a deed of covenant for the payment of monies advanced to the principal debtor, on the understandin......