Purvis v. Carstaphan

Reade,SJ. Where a wife joins her husband in a conveyance of her separate property to sedure a debt of the husband, the relation which she sustains to the transaction is that of surety. A surety is entitled to the benefit of all the securities which the creditor acquires from the principal debtor. And if the creditor prevents or misapplies such securities, to the prejudice of the surety, he thereby discharges the surety, pro tanto. It follows that if the defendant creditor acquired any security from 'the husband plaintiff, and perverted or misapplied it, either of his own will, or with the concurrence of the principal debtor, it releases the surety wife, pro tanto. These positions are well supported by the authorities cited in the plaintiff's brief. It is necessary now to enquire whether the creditor did misapply, to the prejudice of the surety, any security which he had from the principal debtor. And this depends upon the proper construction of the mortgage. The mortgage recites that the plaintiff husband, desired to engage in farming ; and, to enable him to do so, the defendant had agreed to furnish him with money and supplies to the amount of $1,500, if necessary. And the husband and wife mortgaged not only the crops to be made, but the stock, tools, machines, &c., and the farm itself, which farm was the property of the wife to secure whatever sum the defendant might advance, and to save him harmless, &e. The defendant advanced $1,500 and $1,100 more. And the question is, whether the mortgage covers the $4,100, as well as the $1,500. We think it does not. Although the words “ whatever sum ” and “ save harmless,” are large; yet we think they are restrained by the sum specified, $1,500. The stipulation was, that the [582] defendant was to furnish $1,500, “ if necessaryIf so large a sum was not necessary, then “ whatever sum ” might be necessary, less than that. It is admitted that the creditor received from the debtor husband more of the crop, &c., produced on the farm than was necessary to pay oif the $1,500; but by the consent of the husband, he applied it to the excess over the $1,500. While this appropriation was good as against the husband, yet as against the surety wife, it was a perversion, and operated as a discharge ot the liability of her land. There was error in dissolving the injunction. Let this be certified. Pee Cueiam;. Judgment accordingly.