The opinion of the Court was delivered by
The question presented by this appeal, arose out of thе foreclosure of two mortgages of real estate.
On the 29th of December, 1906, the defendants, T. B. Henderson, Lou Henderson, Sue Henderson, Belle Llenderson, W. M. Henderson, T. LI. Henderson, and J. R. Henderson, made and delivered to the plaintiff, John W. Ferguson, their promissory note for $1,880.00, and, in order to secure the payment thereof, executed a mortgage on the tracts of land desсribed in the complaint.
On the 18th of January, 1908, the defendants, T. B. Henderson, T. H. Henderson, and W. M. Henderson, made their promissory note, wherеby they promised to pay to the order of Palmetto Bank оf Laurens, sixteen hundred and fourteen dollars, and executed а mortgage on certain lands, to secure the payment thereof.
John W. Ferguson commenced an action, on the 10th оf June, 1909, to foreclose his mortgage, and made the Hendersons hereinbefore mentioned, and all subsequent creditors who hаd recovered judgment against the Henderson brothers, or who held mortgages executed by them on the lands described in the cоmplaint, parties defendant.
*148 About the same time, the Palmetto' Bank commenced an action to foreclose its mortgage, and made all the above named persons pаrties defendant, except the Henderson sisters.
These two actions were afterwards consolidated.
The Hendersоn sisters, in their answer to the complaint of John W. Ferguson, set up the following defense: “That they signed said note, merely as surety for thеir brothers, the above named T. B. Hender.son, W. M. Henderson, T. H. Henderson, and J. R. Henderson, and they ask that the interest of said brothers in said рroperty, be exhausted and applied to the paymеnt and liquidation of said debt, before their interest.”
The special master in his report says: “The defense of Sue Henderson, Lou Hеnderson and Belle Henderson, that they are mere sureties, оn said indebtedness, is not sufficiently made out, by the greater weight of thе testimony, and the other judgment creditors of the Hendersons, had no noticе that they claimed to be sureties, and not principal debtors.”
His Honor, the Circuit Judge, concurred in these findings of fact, and from the order confirming said report, the Henderson sisters have appealed to this Court.
The first question that will be considered is, whethеr there was error in the finding, that the appellants, were prinсipals and not sureties.
The uncontradicted testimony shows, that the note delivered to John W. Ferguson, was made for the purpose of raising money, to satisfy a previous note and mortgagе executed by all tire Hendersons, in favor of M. W. Cooley, and thаt the money was so expended.
As the money was borrowed for the purpose of satisfying the Cooley indebtedness, for which, nоt only the brothers' but the sisters were liable, it ryas not solely nor absolutely the property of the brothers, to expend as they sаw fit, but was a trust fund; and, from the executions of *149 the trust, not only the brothers but thе sisters', derived a financial benefit.
It cannot, therefore, be successfully contended, that the appellants were mere sureties.
Having reached this conclusion, the other questions involved, become merely speculative.
Judgment affirmed.