Bush v. Stamps

Mr. Justice Fishbe delivered the opinion of the court. This was a bill filed by a creditor to be substituted to the rights of a surety, in a deed of trust executed for his indemnity in a certain contingency by the principal debtor. This court said in the case of Bibb et al. v. Martin et al. 14 S. & M. 92, that “the doctrine of subrogation rests upon very obvious principles of equity;” that if either the creditor or the surety at. any time becomes bound, or at any time, before or after, takes a lien on real or personal property, the other party is entitled to the benefit of it; so that if the surety fail, the creditor may enforce the lien the surety may have taken. In short, either is entitled to stand in the shoes of the other in regard to all remedies. Quoting from 2 Tucker, Em. 492, “ It will thus be seen that whilst the creditor has the right to be substituted to the place of the surety, this substitution or sub-rogation can give him no higher right.” “ The right of the surety must be tried by the instrument which creates it.” 14 S. & M. 93. The complainant is seeking to be substituted to the rights of [467] Shelby the surety; his rights must be tried by the deed of trust which creates them, and it provides as follows, to wit: “ that should judgment be at any time rendered on said note against Shelby, and the! said Pierson should fail to satisfy the same, then it should be the duty of the trustees to sell the property, at such time as should be necessary to protect Shelby from the effect of such judgment.” No judgment has ever been recovered on the note against Shelby. The trustees are only empowered by the deed to sell the property to protect the surety against the “effect” of the judgment.. This is all the right which the principal debtor thought proper to confer on the surety; and the creditor, in the language of the authority, standing in the shoes of the surety, can claim no more at the hands of the court than the surety could claim at the hands of the trustees. To adopt a different rule, would not be to enforce the contract as assented to by the principal, but to make one for the benefit of the creditor. Courts never vary the contracts of the parties, but only enforce them as the parties themselves have made them. It is however said, that the principal and the surety are both discharged bankrupts, and therefore no judgment could have been recovered against them. In reply to this, it is sufficient to state that the deed of trust was executed long after the debt became due; and it is manifest, from its stipulations, that Shelby had no right, before his bankruptcy, to order the trustees to sell the property under the deed, and that the creditor must be confined to the rights which Shelby then had. Looking into the whole case, we are of opinion that the decree ought to be reversed, and the bill dismissed.