39 Miss. 142 | Miss. | 1860
delivered the opinion of the court:
This bill was filed by the appellant, stating, in substance, that in 1853 the appellees recovered a judgment against one Branch, on which execution issued, and a forthcoming bond was executed, with the appellant as surety, which was returned forfeited and exiecution issued thereon, which was “ held up” by the appellant’s consent; that in February, 1855, another execution' issued thereon, which was about to be levied of the property of Branch, but it was ordered by the appellees to be “held up ” without the appellant’s consent, the appellees paying the costs; and they then took from Branch a trust-deed on all the property which he had
The answer admits the allegations of the bill, except that it denies that the attorney had any authority to tell the appellant that he was released from the judgment, or that the attorney ever told him so. It states that the slave mentioned in the bill was taken by the appellees at his full value, which satisfied the trust-deed, and left a surplus of two hundred or three hundred dollars, which Avas applied as a credit on the execution against the appellant.
On the hearing, the appellant proved by his own testimony the allegations of the bill as to the statements of the attorney touching his release; and this was all.tbe proof.
Upon rules well settled in this court, the allegations of the bill, in relation to the stay of execution and giving indulgence to the principal, of themselves show no ground for relief. But the ground on Avhich the appellant’s claim to relief is chiefly rested is, that the conduct of the appellees, in appropriating the slave to their benefit, is, under the circumstances, such a fraud upon his rights, as to entitle him to relief against the execution; and Ave think that this view is sustained by the facts.
It appears that when the execution of February, 1855, was
It is contended, in behalf of the appellees, that they had the right to purchase the slave in payment of their outstanding debt, upon the principle of application of payments made by a debtor, where the creditor has several demands against him. But we do not consider this principle applicable to the present case, because the appropriation of the property to the junior lien or debt was in derogation of the rights of the surety to have the debtor’s
Under these views of the case, the decree is erroneous and must be reversed; and a decree is ordered here perpetually enjoining the judgment as to the appellant.