Woodward v. Clegge , 8 Ala. 317 ( 1845 )

GOLDTHWAITE, J.

Although the special pleas relied on as presenting a defence to the action, may be objectionable on account of the omission of necessary allegations, yet we choose rather to consider them on more general grounds. The argument in support of their soundness is, that a creditor having a security which he can enforce against a principal debtor, cannot discharge it, without its having the effect to release the sureties. If this is even true, when a collateral security is taken from the principal debtor, we have seen no authority to extend the principle so far as to compel the creditor to hold an equitable lien for the benefit of the surety. In McKay v. Grenn, 3 John. C 56, the object of the bill was to obtain for the indorser of a note, used by its maker in payment for lands purchased by him,the benefit of a lien upon the purchased lands. Chancellor Kent there said, that the notion that the indorser had an equitable lien upon the land, because the note he indorsed was applied in part payment of the purchase money, is entirely without foundation. So with us, in the case of Cullum v. Emanuel, 1 Ala. Rep. N. S. 23, a surety insisted, when a mortgage had also been given, that the lands-should be exhausted for his indemnity, instead of being applied to the security of other notes without surety, but we considered his claim as having no valid foundation.

It is said by an eminent jurist, that the principle of subrogation seems in former times, to have been considered as authorizing the surety to insist on the assignment, not merely of collateral securities, properly speaking, but also of collateral incidents, and de-pendant rights growing out of the original debt. [Story’s Eq. § 599, a.] But the extension of the principle is denied by the more-modern cases, and must be considered as firmly established. [Ib.. § 499, c. d. and cases there cited; see also, Foster v. The Athenaeum, 3 Ala. Rep. 302.]

In the present case, the lien arising out of the circumstance, that a bond only was executed to convey title at a future day, is-a mere incident to the contract, and is not in any sense a collateral, or independent security, and therefore the sureties to the note, which the creditor also required to be added, cannot be said to have any rights which are affected by a conveyance of th© title. There was then no error in sustaining the demurrer to these pleas,

2. The rendition of the judgment against Woodward, without proving his acceptance of service of the writ, was irregular, but this objection being personal to him, was cured, when, at a sub» sequent term, he came in person, and admitted upon the record that the proof had been made. Independent of this admission, it was entirely competent for the Court to cure the error, by entering the evidence upon the record nunc pro tunc. [Moore v. Horn, 5 Ala. Rep. 231.]

Judgment affirmed.