Sommerhill v. Cartwright , 26 Tenn. 461 ( 1846 )

Turley, J.

delivered the opinion of the court.

In this case, we think, that the complainants executed the note enjoined, upon the agreement, that the defendant was to assign the judgment, against William Summerhill and others, in which William Summerhill was only security to the demand, upon which the judgment was recovered, for his indemnity, and that this was not done, whereby the benefit intended to be secured to him was lost, and that therefore, the defendant ought not to be permitted to avail himself of any advantage acquired by the execution of the note, but should be left, as he was before its execution.

This will leave him, with his right to have his debt paid, by the enforcement of his judgment, against William Summerhill, Allen Goring and Charles W. Cummings, but the contract by which J. Summerhill, became bound for the debt, being set aside, for a failure of consideration, no benefit has been received under it, and Wm. Summerhill, Allen Goring, and Charles W. Cummings, having sustained no loss, cannot be permitted to avail themselves of the satisfaction of the judgment which was entered from a mistaken supposition, that the execution of the note by Wm. and J. A. Summerhill was available means for its payment.

We are therefore of opinion, that the decree, enjoining the judgment in this case, be affirmed; but modify it, by setting aside, the satisfaction of the original judgment at law so far, as Wm. Summerhill is concerned, which we would also do, as to Allen Goring and Charles W. Cummings, if they were before us, but they not being before us, defendant must be left to such remedy against them, as may be found meet and proper. Decree accordingly.