The plaintiff seeks, in this suit, to exonerate the real and personal estate of Richard F. Blydenburgh, deceased, from the payment of a judgment of $558.58, obtained July 8, 1857, in favor of Emanuel Hoffman and Henry Shubart, against the said Richard F. Blydenburgh and George G. Johnson, upon a promissory note by Johnson, and indorsed by the said Blydenburgh for his accommodation. The plaintiff's case is based upon the theory, that, Johnson being the principal debtor, and Blydenburgh the surety, Blydenburgh has been released and discharged in law by the acts and doings of the defendant Decker. That Decker, knowing that Blydenburgh was surety, procured from Hoffman and Shubart, the plaintiffs in said judgment, an assignment of the same on the 20th November, 1862, and, on the same day, released certain lots of land from the operation of the said judgment, and that said lands had belonged to the said Johnson once, and that the said judgment was a lien upon the said lands so belonging to the said Johnson, and that, by the release thereof, the defendant Blydenburgh, as surety, was released. The judge before whom the case was tried has found the fact, that, at the time of the docketing of the said judgment, and at the time of the assignment thereof to the said Decker, and at the time of the release by him of the said premises in the complaint mentioned, the said George G. Johnson had no interest in the same, but that the same were the property of the defendant Amos F. Bingham. As there was evidence upon which to predicate such a finding, it is conclusive upon this court. I do not see, however, how the court could have found otherwise.
The deed from Johnson to Bingham, of the 14th February, 1857, was good in form, and operative to pass all of Johnson's *Page 376 title to Bingham. This conveyance being before the recovery of the Johnson judgment, and there being no evidence to impeach it, the finding of the judge is in accordance with the evidence. The subsequent execution of a deed in 1861, by Johnson and wife, of the same premises to Bingham, being made for the purpose of releasing the wife's contingent right of dower, affords no evidence to impeach the prior conveyance of Johnson. At any rate, the finding of the judge upon this question is conclusive upon this court.
The plaintiff also made the claim in his complaint, and sought to maintain it upon the trial, that the defendant Decker purchased the said judgment of Hoffman and Shubart, for the benefit of said Johnson and Bingham, and to hold it for their benefit, and that, Johnson being the principal debtor, the judgment should not be permitted to remain against Blydenburgh, the surety. The judge finds this issue against the plaintiff: He finds, that Decker purchased the judgment for his own benefit, with his own money, for the purpose of securing an indebtedness at that time due, and owing to him, by the said Bingham, and that the said judgment is not held by the said Decker for the benefit of the said Johnson and Bingham, but for his own benefit, and as collateral security for moneys due to him by the said Bingham. This finding is in accordance with the evidence. The plaintiff entirely failed to prove the case made in his complaint, as the judge who tried the cause has found, and there is no principle upon which this court can interfere with his findings, and if the findings are sustained, the plaintiff is not entitled to any relief in this action.
I fully appreciate the argument of the appellant's counsel, that the contract of the surety cannot be, in any manner, interfered with, nor can his rights of subrogation be taken away by the creditor. His contract is strictissima juris, and the creditor must not deal with the debtor, or the security which he holds upon the debtor's property, to the prejudice of the surety, unless he intends to release the surety. No such thing has been done here, if Johnson never owned any of these lands after this judgment was obtained. This *Page 377 was a question of fact to be determined upon the trial, and was justly found against the plaintiff upon the trial. The same is true in regard to the question, whether this judgment was purchased by Decker for Johnson's benefit. The judgment of the Supreme Court must be affirmed.
All agree to affirm.
Judgment affirmed. *Page 378