The amendment by which John Baker, the co-surety of the plaintiff, was made party plaintiff, removed all difficulty in respect to parties and to the quantum question of damages, for which the plaintiffs were entitled to judgment.
We concur in the view of his Honor in respect to the effect of the parol understanding made at the time of the contract of purchase for the one-half interest of McKenzie in the still, by J. N. F. Baker, who, to induce the plaintiffs to become his sureties for the price, agreed that the title should pass to them until the price was paid. If the title had passed to J. N. F. Baker, and afterwards he had agreed that the title should pass from him to his sureties for their indemnity, the statute requiring mortgages and deeds of trust to be in writing and registered would have applied; but in our case, the title did not pass from McKenzie to the plaintiffs to indemnify them as sureties, and so the statute did not apply.
We also concur with his Honor in the mode of equitizing the whole matter between the parties, so as to require the amount of the judgment to be paid into Court to be applied *Page 159 pro tanto in discharge of the judgment for the purchase money. Under C. C. P., a judgment is "the final determination of the rights of the parties to an action," and this final determination called for an application of the amount for which the plaintiffs had judgment to the debt for the price of the still, thus relieving the sureties and also relieving the defendant, Cole, as administrator of J. N. F. Baker, the principal. This is a more equitable disposition of the fund that if the administrator had been allowed to apply the value of the still in the general course of administration, and fortunately for the sureties they had, by the stipulation that the title should pass from McKenzie to them, put themselves in a condition to enforce the equity.
Nor error.
PER CURIAM. Judgment affirmed.