Whitehead v. Henderson

Wood, J., (after stating the facts). We will not uselessly encumber the record by discussing mere matters of fact. After carefully considering the evidence, we are unwilling to disturb the findings of fact by the learned chancellor, not being convinced that such findings are clearly against the weight of such of the evidence, as was competent and proper for him to consider. On the question of fraud, and the appellee’s participation therein, we have experienced some difficulty in determining on which side the balance leaned, and therefore we deem it a good case in which to let the chancellor’s finding prevail. We find no error of law. The principles of law applicable to the facts, as found by the court, are elementary. We need only to mention one which perhaps has not before been passed upon by this court. “The general doctrine,” says the Supreme Court of the United States, “that a creditor has a right to claim the benefit of a security given by his debtor to a surety for the latter’s indemnity, and which may be used if necessary for the payment of the debt, is not questioned. The security in such case is in the nature of trust property, and the right of the creditor arises from the natural justice of allowing him to have applied to the discharge of his demand the property deposited with the surety for that purpose, if required by the default of the prin - cipal.” Chamberlain v. St. Paul, &c., R. Co. 92 U. S. 299, 306; 1 Story, Eq. Jur. § 502, and authorities there cited. Affirm the judgment. Battle, J., absent.