Pool v. Doster
Mississippi Supreme Court
Appeal from the Chancery Court of Clay County. Hon. F. A. Critz, Chancellor. A creditor of Alfred Ellis, deceased, seeks, in this bill, to establish his claim and foreclose a trust deed executed by the administrator, T. S. Ellis, for the benefit of sureties on his bond. The trust is that if the sureties are discharged the deed shall be void, but if either of them is compelled by law ■ to pay any part of the penalty, the trustee shall sell the land ;;and remunerate him.
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Appeal from the Chancery Court of Clay County. Hon. F. A. Critz, Chancellor. A creditor of Alfred Ellis, deceased, seeks, in this bill, to establish his claim and foreclose a trust deed executed by the administrator, T. S. Ellis, for the benefit of sureties on his bond. The trust is that if the sureties are discharged the deed shall be void, but if either of them is compelled by law ■ to pay any part of the penalty, the trustee shall sell the land ;;and remunerate him. A surety and T. S. Ellis are dead, and their estates are insolvent. The other surety and the estate of Alfred Ellis are also…
1Opinion of the CourtCampbell, J.
In this State the distinction has been broadly made between a security given by a principal debtor to his surety, as a personal indemnity to him against loss, and one given as a security for the debt. In the former, it is held that there can be no resort to the security, except as a means to indemnify the surety accoiding to the terms of the instrument creating it, while in the latterthe security may be made available by the creditor as a trust for the payment of his demand. The reported cases announcing the view taken of a security for the surety’s indemnity are Bibb v. Martin, 14 S. & M.…
2Cases cited4 opinions
- Osborn v. NobleMississippi Supreme Court · 1872
- Carpenter v. BowenMississippi Supreme Court · 1868
- M'Lean v. RagsdaleMississippi Supreme Court · 1856
- Bush v. StampsMississippi Supreme Court · 1853
3Cited by5 opinions
- Importers & Traders Bank v. McGhees & Co.Supreme Court of Georgia · 1892
- Dyer v. JacowaySupreme Court of Arkansas · 1905
- New Martinsville Bank v. HartWest Virginia Supreme Court · 1927
- Clay v. FreemanMississippi Supreme Court · 1897
- Weir-Booger Dry Goods Co. v. KellyMississippi Supreme Court · 1902