Lee v. Griffin

Fisher, J., delivered the opinion of the court. This is an appeal from a decree of the Vice-Chancery Court, at Yazoo city, sustaining a demurrer to the complainant’s original and amended bill of complaint. The facts are as follows: — John and Thompson Brister, as executors of the last will and testament of one T. Brister, deceased, sold certain property of the testator under an order of the Probate Court of Yazoo county, at public sale, on a credit of eight months, when one James Perry became the purchaser. Perry executed his note, with the complainants as securities. He afterwards sold the property, which consisted of mules, wagon, &c., to the defendant, Griffin, who has since sold or secreted the same. Perry being insolvent, the securities insist that they have a right to go into a court of equity to enforce the statutory mortgage in favor of the [638] executors, before paying or otherwise securing the debt. This is briefly the case as presented by the original and amended bill— which may be considered as one bill — the amended .bill being intended to correct certain errors as to fact in the original bill. The first, and indeed the only question requiring consideration is, whether the securities before paying or securing the debt, can be subrogated to the rights of the executors, or compel them to resort to the mortgaged property, before proceeding to collect the debt from the securities. This point has been settled by this court in the Bank of England v. Tarlton et al., 23 Miss. R. 182. The court in that case say, “ The privilege of substitution in behalf of a surety who has paid the debt of his principal, is of purely equitable origin, and is based exclusively on the principles of natural justice. It has been uniformly held to exist only in cases where the surety has actually paid, or has secured the payment of the debt due by his principal.” This would be the rule w'hich would govern the case presented by the original bill, alleging the property to be in the possession of the sub-vendee, Griffin. But the rule could not even be so favorably applied under the amended bill, which alleges that the property has been either disposed of or secreted by the sub-vendee. The question in such case is, not whether the executors shall first proceed to subject the property to the payment of the debt, but whether they shall proceed to hold the sub-vendee liable by an action or proceeding to recover damages, before proceeding against the sureties. A bill, no doubt, before payment, could be maintained by the sureties, to prevent the parties from selling or otherwise disposing of the property; but when such disposition was made before the bill was filed, it is then merely a question of damages, if there be any remedy at all against the parties. Decree affirmed.