Opinion :
The evidence conduces to show that the father of Mrs. Higgins had been for a number of years endeavoring to purchase the sixty acres of land in controversy for the benefit of his daughter, and to attach it to his homestead. It formerly constituted a part of the farm devised to his daughter, and his great desire that his daughter should again own it negatives the idea that the title was to be vested in the husband. It is shown by disinterested parties that the money was given to Mrs. Higgins by her father for the purpose of purchasing this land, and she swears that she retained the money in her possession until the day the deed was made to. her husband, when she delivered it to him, and the payment was made. She also states that the title was to be made to her and that the husband so promised; and the fact that it was not, she failed to discover until the land was conveyed to him in 1871.
The statement by the wife is consistent with all the facts in the case, and if she is to be defrauded out of the land it is because the husband violated his promise made to her by having the conveyance made to himself. The land was bought with, her money. Her father assisted in making the contract, and there is no doubt from all the proof but that the wife was entitled to' the deed. She obtained this deed to the land before the creditors asserted their claim to it, and her right to> the property is superior both in law and equity to the claims of those who> have credited the husband.
The fact that the wife failed to. assert this right in her answer to the cross-petition of the appellants cannot be held to. prejudice her rights. She has made the defense to the original action filed by the creditors; and the facts also conduce to show that no- credit could have been given the husband by reason of his being the owner of this land, as the appellants seem not to have known that he was ever invested with title, as their efforts to make their money by execu*26tions upon judgments at law proved a failure. The wife endeavored to reconcile the creditors' by consenting to a mortgage by the husband upon the annual crops raised on the place, and their failure to realize from this is to be attributed to the husband, and not the wife. In all her conduct in regard to the transactions connected with the land, there'has been no concealment of her intentions, or any evidence of a desire to deprive the creditors of the husband from collecting their claims out of property to which he was entitled.
Sam. F. McKee, Petree & Little, for appellants. E. P. Campbell, McPhearson & Chaplin, for appellees.As to the claim of the former wards of Higgins, they were entitled to be substituted to the rights of the surety in the guardian’s bond. The principle is well settled that the creditor has the right to be substituted to the benefit of any collateral security which the debtor has given the surety to secure the debt; nor is it material whether the surety has paid it or not, or will sustain loss; the creditor may subject it.
Bank of U. S. v. Stewart, et al., 4 Dana 27. The judgment below is affirmed.