Clay v. Freeman

Cooper, C. J.,

delivered the opinion of the court.

In Pool v. Doster, 59 Miss., 258, Judge Campbell, speaking for the court, deduced from our previous decisions, with clearness and precision, the rule by which it is to be determined when a creditor may have the benefit of securities held by the surety of his debtor. We can add nothing to it, and nothing can be taken from it. He said: “The rule deducible from our decisions is, that to make a security available to the creditor, it must be conditioned for the payment of the debt and for enforcement on default in its payment — in other words, it must be expressed to be for the security of the debt, and to be enforceable for its payment, or, otherwise, it will not be held to be enforceable in behalf of the creditor. And even if the security is conditioned for the payment of the debt, but stipulates for its enforcement in a specified contingency, it will be held to be a mere indemnity to the surety, and only enforceable as such according to its terms.” In McLean v. Ragsdcole, 31 Miss., 701, the security was conditioned for the payment of the debt, but the court held that this was a mere means for affording indemnity to the surety, and that the creditor was not entitled to its benefit.

One of the conditions of the mortgage in the present suit, is *821that the debtors should pay any judgment that might be rendered against the sureties, and it also authorizes the sureties to require sale by the trustee in event that this condition is not performed. But it neither authorizes nor requires the trustee to pay the debt, if the property is converted into money, but directs him to place in the hands of the sureties a sum sufficient to indemnify them against loss. It thus appears that the sole purpose of the security was to indemnify the sureties, and, under the rule which obtains in this state, the security is not available to the creditor.

The decree is affirmed.