Clay v. Freeman
Clay v. Freeman
Opinion of the Court
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
The decree is affirmed.
Reference
- Full Case Name
- Brutus J. Clay v. Lucy C. Freeman
- Status
- Published
- Syllabus
- 1. Subrogation. Principal and swreby. Creditor. Indemnity. Secwrity. A security given by a principal to liis surety, which is not conditioned to secure the debt, but merely to indemnify the surety, cannot be enforced by the creditor. 3. Same. Contingent Viability. Even if the security in such ease is conditioned to pay the debt if it provides for its enforcement only upon a certain contingency, it is a mere indemnity, and can be enforced only according to its stipulations.