Lyon v. Leavitt , 3 Ala. 430 ( 1842 )

GOLDTHWAITE, J.

There would be a number of highly important questions to be discussed in this case, if the bill stated a case of fraud. But this is not the ground on which the complainant seeks relief. He insists that inasmuch as the mortgage held by the defendants, Hale & Bates, would enure to his benefit, if he is compelled to pay the notes indorsed by him, he is authorised to demand that they shall be required to remove the incumbrance created by them.

If this could be allowed, the effect would be to introduce a principal into equity jurisprudence which seems to be entirely novel.

It may be conceded for the purposes of this argument, that the complainant .is a surety, and furthermore, that as such, he would be entitled to subrogation of the mortgage upon discharging all the debts of Jones, but even this concession does not authorise him to demand additional security to that with which his principal seems to have been satisfied.

The result of introducing such a principle would be to destroy the security which the vendors stipulated for, when they sold the land, and would place the indorser in a condition much more favorable than that occupied by the maker of the note; but the indorser must be content with the security contracted for by the maker, and in a case like this, the vendee can only resist the payment of the purchase money, when, he is evicted by title paramount.

The decree dismissing the bill is affirmed, ^