Pool v. Doster

Campbell, J., delivered the opinion of the court. In this State the distinction has been broadly made between a security given by a principal debtor to his surety, as a personal indemnity to him against loss, and one given as a security for the debt. In the former, it is held that there can be no resort to the security, except as a means to indemnify the surety accoiding to the terms of the instrument creating it, while in the latterthe security may be made available by the creditor as a trust for the payment of his demand. The reported cases announcing the view taken of a security for the surety’s indemnity are Bibb v. Martin, 14 S. & M. 87; Bush v. Stamps, 26 Miss. 463; M'Lean v. Ragsdale, 31 Miss. 701; and Osborn v. Noble, 46 Miss. 449. Those illustrating the character of securities available to the creditor as a security for the debt are Ross v. Wilson, 7 S. & M. 753; Dick v. Mawry, 9 S. & M. 448, and Carpenter v. Bowen, 42 Miss. 28. This distinction is noticed in Brandt on Suretyship and Guaranty, §§ 285, 286 ; and in Leading Cases in Equity, vol. i., pt. i., p. 175 et seq., where the cases in this State and in other States are cited. In none of our cases is any mention made of the insolvency of the surety to whom a security for his indemnity was given as affecting the rights of parties. In Bush v. Stamps, cited above, the principal and surety were both discharged bankrupts, and this was held to make no difference, because the surety had no right before his bankruptcy to enforce the security, and the creditor was confined to the rights which the surety then had, and as no right could ever be enforced by the surety none was available to the creditor. Upon the principle of our cases as to securities as mere indemnity to the surety, (his supervening insolvency could not create a right in the ■ creditor which he would not otherwise have to resort to the [263] security given to the surety. That principle is that the surety must suffer loss or damage from the default of the principal before he can resort to the security, and he must have the right to enforce it before the creditor can. The rule deducible from our decisions is, that to make a security available to the creditor, it must be conditioned for the payment of the debt, and for enforcement on default in its payment: in other words, it must be expressed to be for the security of the debt, and to be enforceable for its payment; or otherwise it will not be held to be enforceable in behalf of the creditor. And even if the security is conditioned for payment of the debt, but stipulates for its enforcement in a specified contingency, it will be held to be a mere indemnity to the surety, and only enforceable as such according to its terms. Bush v. Stamps, 26 Miss. 463; M'Lean v. Ragsdale, 31 Miss. 701. Whether these decisions are right or wrong is not the question. They are unmistakable in their effect, and have been long acquiesced in, and doubtless have constituted the basis of many transactions, so as to be justly regarded as forming a rule of property, and we will not disturb them. They are not in harmony with many cases in other States, and may not be defensible on the principle of the doctrine of the right of the creditor to be substituted to all the securities held by the surety, but they furnish the rule in this State. The security sought to be availed of by the creditor in this case belongs to the class held to.be a mere indemnity for the surety, and as the surety has not been compelled to pay anything, and that is made by the deed of trust the contingency on which it may be enforced, the bill was demurrable. The suit was rightly brought in Clay County. It might also have been brought in Lowndes County. Decree affirmed.