Chilton's Adm'r v. Chapman

NAPTON, J. In this case the plaintiff took a non-suit, because of the following instruction : “If the jury believe from the evidence, that the plaintiff, at any time before the commencement'of this suit, accepted a conveyance of property from the principal debtor, to indemnify him as security, and that he authorized said property sold, or accepted by him or through an agent of the sale, they cannot find for him, provided the property at such sale was sold at a sum sufficient to indemnify him.” This was the only instruction given. Its phraseology might be criticised, if we had not abundant experience of the blunders of copyists ; but as we understand its import, its propriety is scarcely questionable, if the facts in evidence authorized it. The instruction is a plain legal deduction from the facts hypothetically assumed. If the sale under the deed of trust brought enough to indemnify the plaintiff and he acquiesced iu the conduct of the sale by the trustee, he has no remedy against the defendant, his co-security. The statement of the case shows there was evidence to warrant this instruction. The fact was, as the testimony discloses, that the plaintiff had taken a deed of trust upon real-estate and a slave, amply sufficient to indemnify him — that the trustee was directed to sell under the deed — that he did sell for more than enough to pay off the .debt, but the money was not paid by tlic bidder, and the trustee therefore refused to make a title. It seems that one Silman was also interested in the proceeds of the deed of trust, hut only subject to the entire payment of the plaintiff’s claim, and that Silman’s agent was the purchaser. . It is obvious that the present action is useless in any view of the case. If the plaintiff fails to get his money, from the proceeds of the property conveyed to him, it must be by reason of some gross negligence or willful connivance of his own. It does not appear but that he is still amply secured, and that he need not resort to his co-security for whose benefit the deed enures as well as his own. Judgment affirmed.