Stone v. Furber

Ellison, J. This action was tried on agreed facts, set forth in the statement of the case. While the rule is, that in equity, a creditor is entitled to the benefit of the securities which his debtor’s sureties have [504] taken for their own indemnity, and may subject them to the payment of his debt, yet, “ his equity is derived through the sureties, and not independently of them.” And it is “.clear that he occupies no other position than they do, and if they have, in good faith, released, discharged, or otherwise impaired their value, before he has taken any steps to subject them to his claim, the creditor cannot justly complain.” Logan v. Mitchell, 67 Mo. 524. In the case before us, the release of the ^mortgage had been made by the mortgagee surety, before the plaintiff undertook to subject the property to his claim, and, under the above view, he was too late. It is true the agreed statement sets forth that the surety released the mortgaged property fraudulently, and though the authorities, in speaking of this subject, generally use the expression bona fide, when referring to the act of the surety in discharging the securities he may have, still, if there intervenes an innocent purchaser, not participating in bad faith of the surety, I cannot understand how he could be affected by the fraud of the surety. The authorities cited for plaintiff do not meet the facts of this case. The judgment is affirmed. All concur.