Hawkins v. May

ORMOND, J. The case of Perkins and Elliott v. Mayfield, 5 Porter, 191, is a conclusive authority, that a deed made bona fide, in trust to secure a contingent liability, will be upheld against a creditor of the grantor, and that whilst the liability is continuing, and undetermined, the property conveyed in trust, cannot be sold for the debts of the grant- or. This case is precisely similar. The deed here is to indemnify the claimant, and his co-surety against loss, as the sureties of the defendant in execution, upon her official bond as executrix, and the case cited is fully in point, it having-been shown that the liability is still continuing. Under the equity of the statute, which authorizes a creditor to [pay the secured debt, and have the benefit of a trust provided for its payment, the creditor in such a case as the present, it would seem, should be permitted, upon indemnifying the surety against loss, to be permitted to sell the property conveyed for his security. This, it is true, a court of law could not do, but a court of equity has ample power to cause such an indemnity to be executed, and without such a power existing somewhere, deeds of this description must be liable to great abuse. But conceding this power to a court of equity, it is certain, that"at law, the deed, if bona fide, must be upheld against the claim of a creditor. In this case however, it appears there was an actual default, [677] and that the surety has been compelled to pay a sum of money on account of his suretyship, and according to all the authorities to be found in our books, he had the right to the possession of the property under the deed, to sell for his re-im-bursement. Having the right under the deed, to take possession at their discretion, and sell, they cannot be deprived of the exercise of this right, by [the levy of an execution ; but may, after the levy, assert their right, and put an end to the possession acquired by the sheriff. [Magee v. Carpenter, 4 Ala. Rep, 469; P. & M. Bank v. Willis & Co. 5 Id. 785.] The possessory interest of the grantor, which may be sold under execution, against the will of the grantee, is a certain, ascertained possession, for a definite period, and not a permissive possession, such as this, which may be terminated at the pleasure of the grantee, whenever he considers it necessary for his security, and which is in fact terminated by the interposition of a claim. The question is raised in this court, that both the sureties for whose indemnity the deed was executed, should have interposed the claim. If the objection had been made in the court below, it would doubtless have been in the power of the court to permit the other surety to join in the prosecution of the claim. But as the interest of the sureties in this deed was joint, we can perceive no reason why one should not be permitted to prosecute the claim for both, at all events jf it is not qbjected to. [McGrew v. Hart, 1 Porter’s Rep. 175.] Let the judgment be reversed and the cause remanded.