56-2-1      Suretyship defined.
56-2-2      Apparent principal may show that he is a surety.
56-2-3      Joint control of deposits of assets--Agreement between insured and surety--Withdrawal procedure.
56-2-4      Rights of a surety same as guarantor.
56-2-5      Performance of obligation when due by principal--Compelling by surety.
56-2-6      Neglect of creditor to proceed against principal at request of surety--Surety exonerated to the extent which he is prejudiced.
56-2-7      Property of principal first resorted to.
56-2-8      Surety exonerated in like manner with guarantor.
56-2-9      Surety exonerated by performance or offer of performance.
56-2-10      Surety exonerated to extent prejudiced by act of creditor.
56-2-11      Surety exonerated to extent prejudiced by omission of creditor.
56-2-12      Liability of surety limited by express terms of contract--Penalty for breach.
56-2-13      Suretyship relation not changed by creditor's judgment against surety.
56-2-14      Satisfaction of principal obligation by surety--Reimbursement, exception as to other persons.
56-2-15, 56-2-16. Repealed.
56-2-17      Surety subrogated to rights of creditor.

56-2-1. Suretyship defined.

Suretyship is a contract by which one who at the request of another and for the purpose of securing to him a benefit becomes responsible for the performance by the latter of some act in favor of a third person or hypothecates property as security therefor.

Source: SDC 1939, § 26.0201.

56-2-2. Apparent principal may show that he is a surety.

One who appears to be a principal whether by terms of a written instrument or otherwise may show that he is in fact a surety except as against persons who have acted on the faith of his apparent character of principal.

Source: SDC 1939, § 26.0203.

56-2-3. Joint control of deposits of assets--Agreement between insured and surety--Withdrawal procedure.

It shall be lawful for any party of whom a bond, undertaking or other obligation is required, to agree with his surety or sureties for the deposit of any or all moneys and assets for which he and his surety or sureties are or may be held responsible, with a bank, savings bank, safe deposit or trust company, authorized by law to do business as such or with other depository approved by the court or a judge thereof, if such deposit is otherwise proper, for the safekeeping thereof, and in such manner as to prevent the withdrawal of such money or assets or any part thereof, without the written consent of such surety or sureties, or an order of court, or a judge thereof made on such notice to such surety or sureties as such court or judge may direct; provided, however, that such agreement shall not in any manner release from or change the liability of the principal or sureties as established by the terms of said bond.

Source: SL 1951, ch 174; SDC Supp 1960, § 31.3109.

56-2-4. Rights of a surety same as guarantor.

A surety has all the rights of a guarantor whether he becomes personally responsible or not.

Source: SDC 1939, § 26.0206.

56-2-5. Performance of obligation when due by principal--Compelling by surety.

A surety may compel his principal to perform the obligation when due.

Source: SDC 1939, § 26.0208.

56-2-6. Neglect of creditor to proceed against principal at request of surety--Surety exonerated to the extent which he is prejudiced.

A surety may require his creditor to proceed against the principal or to pursue any other remedy in his power which the surety cannot himself pursue and which would lighten his burden, and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced.

Source: SDC 1939, § 26.0207.

56-2-7. Property of principal first resorted to.

Whenever property of a surety is hypothecated with the property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation.

Source: SDC 1939, § 26.0212.

56-2-8. Surety exonerated in like manner with guarantor.

A surety is exonerated in like manner with the guarantor.

Source: SDC 1939, § 26.0205 (1).

56-2-9. Surety exonerated by performance or offer of performance.

A surety is exonerated by performance of the principal obligation or tender of such performance duly made as provided in this code.

Source: SDC 1939, § 26.0205 (2).

56-2-10. Surety exonerated to extent prejudiced by act of creditor.

A surety is exonerated to the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights or which lessens his security.

Source: SDC 1939, § 26.0205 (3).

56-2-11. Surety exonerated to extent prejudiced by omission of creditor.

A surety is exonerated to the extent to which he is prejudiced by an omission of the creditor to do anything when required by the surety which it is his duty to do.

Source: SDC 1939, § 26.0205 (4).

56-2-12. Liability of surety limited by express terms of contract--Penalty for breach.

A surety cannot be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty.

Source: SDC 1939, § 26.0202.

56-2-13. Suretyship relation not changed by creditor's judgment against surety.

Notwithstanding the recovery of a judgment by a creditor against a surety, the latter still occupies the relation of surety.

Source: SDC 1939, § 26.0204.

56-2-14. Satisfaction of principal obligation by surety--Reimbursement, exception as to other persons.

If a surety satisfies the principal obligation or any part thereof, whether with or without legal proceedings, the principal is bound to reimburse what he has disbursed including necessary costs and expenses, but the surety has no claim for reimbursement against other persons, though they may have been benefited by his act, except as prescribed by § 56-2-15.

Source: SDC 1939, § 26.0209.

56-2-15, 56-2-16. Repealed by SL 1981, ch 357, §§ 1, 2.

56-2-17. Surety subrogated to rights of creditor.

If the duty of the principal to the creditor is fully satisfied, the surety, to the extent that he has contributed to this satisfaction, is subrogated to all of the following:

(1)    The rights of the creditor against the principal;

(2)    Subject to the rule stated in subdivision (4) of this section, the interests which the creditor has in security for the principal's performance and in which the creditor has no continuing interest;

(3)    The rights of the creditor against persons other than the principal whose negligence, willful conduct or breach of contract has made them liable to the creditor for the same default, loss or damage; and

(4)    The rights of the creditor against cosureties and to the creditor's interest in security held by them, but in such case the cosurety's personal liability is limited to the amount which will satisfy his duty to contribute his share of the principal's default.

Source: SL 1981, ch 357, § 3.