The obligation of the surety is accessory to that of his principal; and, if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment. If, however, the original contract of the principal was invalid from a disability to contract and this disability was known to the surety, he shall still be bound.
(Orig. Code 1863, § 2126; Code 1868, § 2121; Code 1873, § 2149; Code 1882, § 2149; Civil Code 1895, § 2967; Civil Code 1910, § 3539; Code 1933, § 103-102.)
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Suretyship, §§ 1 et seq., 18 et seq.
C.J.S.- 72 C.J.S., Principal and Surety, §§ 18, 19.
ALR.
- Agreement by principal to pay compound or additional interest, as releasing surety, 2 A.L.R. 1569.
Right of surety to avoid contract for fraud on principal, 3 A.L.R. 868.
Right to judgment against surety where action fails against principal, 5 A.L.R. 594.
Incapacity of principal to contract as affecting liability of guarantor or surety, 24 A.L.R. 838; 43 A.L.R. 589.
Right of obligee in surety bond to fill blank as to amount, 37 A.L.R. 1395; 48 A.L.R. 741.
Taking of demand note in renewal as releasing surety or endorser, 48 A.L.R. 1222.
Ignorance or mistake as to character of instrument signed as affecting liability of surety or guarantor, 66 A.L.R. 312.
Right to contribution or indemnity of executor, administrator, guardian, testamentary trustee, or sureties against a cofiduciary or sureties, in respect of losses or defaults for which the fiduciaries are answerable, 66 A.L.R. 1147.
Liability of grantee assuming mortgage debt, to grantor, 76 A.L.R. 1191; 97 A.L.R. 1076.
Liability of guarantor of obligations to bank as affected by limitation of amount which bank may legally loan, 92 A.L.R. 341.
Guaranty as covering renewals, after revocation, of claims within coverage at time of revocation, 100 A.L.R. 1236, 58 A.L.R.5th 325.
Acceptance of construction work as releasing contractors or sureties on bond conditioned for performance of construction contract or guaranteeing completed work, 109 A.L.R. 625.
Liability of sureties on bond of tax collector for illegal or unauthorized acts of latter toward individual taxpayer, 127 A.L.R. 857.
Creditor's reservation of rights against surety in releasing or extending time to principal debtor, 139 A.L.R. 85.
Right to join principal debtor and guarantor as parties defendant, 53 A.L.R.2d 522.
Duty of construction contractor to indemnity contractee held liable for injury to third person, in absence of express contract for indemnity, 97 A.L.R.2d 616.
Liability of surety on infant's contract or obligation, where contract is disaffirmed by infant, 44 A.L.R.3d 1417.
Change in name, location, composition, or structure of obligor commercial enterprise subsequent to execution of guaranty or surety agreement as affecting liability of guarantor or surety to the obligee, 69 A.L.R.3d 567.