26 Gratt. 511 | Va. | 1875
delivered the opinion of the court.
The court is of opinion that William W. Minor, executor of Dabney Minor, deceased, had no interest in the subject of the suit, and was not a necessary party. The deed of trust was executed to secure the payment to the said Minor, as executor as aforesaid, of four bonds, which had been given to him by Bartlett A. Henson and his sureties, Benjamin Henson, the appellee, and others, for the purchase money of a tract of land belonging to the estate of Dabney Minor, deceased, which had been sold and conveyed by deed of record by said Minor, executor as aforesaid, to the said Bartlett A. Henson, and which, subsequently, the said Bartlett sold and conveyed to the appellant. Three of the bonds were fully paid by the principal himself to the said Minor. Upon the fourth and last bond suit had been brought, and judgment obtained by the said Minor, which was fully satisfied by Benjamin Henson, the appellee, one of Bartlett A. Henson’s securities, who brought this bill in equity, to enforce by right of subrogatiou, Minor’s lien upon the land.
What interest could Minor have in the suit? He was fully satisfied of the debt secured by the deed of trust, and had no further interest in the subject. And the security of the debtor was entitled for so much of it as had been paid by him, to be subrogated to the securities and remedies of Minor, the creditor, upon well established principles of equity.
If the appellee was seeking to enforce this lien as the assignee of Minor, upon the authority of Littlejohn v. Ferguson, 18 Gratt. 53, 81, 82 and 83, Minor would not have been a necessary party. Minor did assign to him without recourse. But it is insisted by the learned counsel for the appellant, that the assignment was nu
And it is not necessary that he should be made a party for the protection of the appellant, the subsequent purchaser of the land, because, when the appellee paid the debt, his payment was a full satisfaction and discharge of the obligation of his principal and his securities to Minor, and is a legal bar to any claim which might be made by him to the land. Minor has no claim that he could set up against it. His bond is filed in the clerk’s office with the record of the suit, and is merged in the judgment, which the return upon the execution shows is satisfied. After the bond was discharged he has no claim against the land which he could ever assert. It is not then necessary for the appellant’s protection that Minor should be a party to the suit; and there is no error in the judgment of the court overruling the demurrer for this cause.
The court is further of opinion that there is no error for which the decree should be reversed for not decreeing primarily against Bartlett A. Henson personally. Omohundro asked for no decree against him. He, as grantee of Henson, took the land as it was in
The court sees no error, and is of opinion to affirm the decree of the Circuit court with costs ahd damages.
Decree arrirmed.