Carver v. Steele

Citations

• 116 Cal. 116
• 47 P. 1007
• 1897 Cal. LEXIS 519

Syllabus

<p>Principal and Surety—Neglect of Creditor—Loss of Remedy Against Principal—Surety not Discharged.—In general, unless some agreement or special circumstance imposes diligence upon the creditor as a duty, he does not, by mere failure to pursue the person primarily liable, discharge the guarantor, surety, or indorser, even though his passivity in this regard may result in barring his remedy against the principal debtor.</p> <p>Id.—Failure of Mortgagee to Foreclose Mortgage—Sale under Prior Mortgage—Indorsers of Note not Discharged.—A mortgagee of land does not, by his mere failure to foreclose his mortgage lien, discharge the indorsers of the note to secure which the mortgage was executed; and such indorsers are not discharged or released by failure of the mortgagee to set up and foreclose his junior mortgage in an action to which he was a party, in which a prior mortgage was foreclosed, and a sheriff’s deed of the mortgaged premises was given to the purchaser under such foreclosure.</p> <p>Id.—Promise of Indorsers not Secured by Mortgage—Loss of Remedy Against Mortgagor Immaterial.—The promise of the indorsers of a note secured by mortgage is distinct from the promise of the maker of the note and mortgage, and the loss of personal remedy against the maker of the note, or of the lien of the mortgage, in consequence of the nonaction of the mortgagee, is of no moment, so far as regards the liability of the indorsers of the note.</p>