Young et al vs. Duhme & Co. tition is not, either in substance or form, sufficient to bring the case within the principles of the cases referred to; it was not drawn with that design, as is evident, not only from the petition itself but from the judgment which was rendered in the case and from the petition in the second case, in which it is expressly averred that the plaintiffs, at the May term, 1860, of said court, "obtained a judgment against said Young and wife, administratrix and administrator of B. Willey, deceased, to be levied of assets of decedent which came to their hands to be administered, &c." The statute has provided for any that might otherwise result to creditors or others interested in the estate, by requiring that the court shall grant administration de bonis non to some other proper person, where, upon the marriage of the female representative, there is no other personal representative to discharge the trust. As the facts, alleged in the first petition, were not sufficient to constitute a cause of action against appellees, the demurrer to the answer should have been overruled, and should have been sustained to the petition. The judgment is therefore reversed, with directions to sustain the demurrer to the petition and for further proceedings consistent with this opinion. But little remains to be said upon the subject of the judg ment in the other case. It is a suit upon the administration bond against the principal and sureties, suggesting a devastavit. However learned judges may have heretofore differed, as to whether one or two judgments were necessary against the personal representative, before the sureties in the administration bond could be made responsible for a devastavit, it is now authoritatively settled that a creditor, before he can maintain his action against the sur ties in the administration, must have obtained a judgment against the personal representative estab lishing his debt, and fixing upon him assets sufficient to discharge said debt, or a part of it, although a return of nulla bona on an execution issued upon such judgment "is not an essential prerequisite to an action upon the bond for a devastavit." (McCalla's adm'r. vs. Patterson, &c., 18 B. Mon., page 207.) Calvert vs. Sasseen. As it does not appear in this case that any judgment had been obtained by appellees against the personal representative of the intestate, prior to the institution of this suit, no cause of action was shown against appellee. Wherefore the judgment is reversed, and the cause is remanded with directions to allow the appellees to amend the petition if they should offer to do so within a reasonable time; and, if they fail to make such amendment, that the petition be dismissed. CASE 10-PETITION ORDINARY-JUNE 11. Calvert vs. Sasseen. APPEAL FROM THE CALDWELL CIRCUIT COURT. 1. A parol agreement between debtor and creditor that a buggy of the former should be valued by two men to he thereafter selected for that purpose, the creditor to take it at such valuation and credit the amount he held on the debtor; if the val uation should exceed the amount of the note the creditor to pay the excess. There had been no valuation, no change of possession, when an attachment, sued out by another creditor of the debtor, was levied upon the property. Held, That the agreement passed no right, legal or equitable, to the property, and that the attachment be sustained. 2. For a breach of the agreement, supra, by either party to it, an action for damages would be the only remedy. W. H. CALVERT, for appellant, cited, 1 Parsons on Contracts, 440, 441; Zb., 139; 7 Duna, 60; Chitty on Contracts, 2 Am. Ed., 111, 112. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: In this action an attachment issued and was levied, among other things, on a buggy, as the property of the defendant, Stone. Sasseen filed his petition, claiming the buggy as his own, under an alleged purchase from Stone prior to the suing Calvert vs. Sasseen. out or levy of the attachment. He states that he held a note on Stone for $128, and took the buggy in part payment of the debt at the price of $75. The court below sustained the claim of Sasseen to the buggy, and the plaintiff Calvert has appealed. The evidence wholly fails to establish the alleged purchase of the buggy, or to show that even the price alleged or any other price had been fixed by the parties. The testimony of the witnesses introduced by Sasseen is substantially this: It was agreed by Sasseen and Stone, a few days before the attachment issued, that the buggy should be valued by two men to be thereafter selected for that purpose, Sasseen to take the buggy at such valuation and credit the amount on the note he held on Stone; if the valuation should exceed the amount of the note, Sasseen was to pay the excess; that the buggy was to be brought to town for the purpose of being valued, but that had not been done, nor had there been any valuation according to the agreement, nor any change of the possession of the property up to the time the attachment was levied. Upon these facts it would hardly be pretended that there was a sale and purchase of the buggy, such as passed the title to Sasseen. Nor did the agreement, as prove, invest him with such an equity as the chancellor could have inforced, either as against Stone himself or his attaching creditor. It was neither a mortgage nor pledge of the property to secure the payment of the debt, the agreement being in parol, and unaccompanied by a delivery of the possession. It was nothing more than a mere agreement to sell, to be executed at a future time, and upon terms to be thereafter fixed in the mode prescribed. Obviously it was an agreement which a court of equity would not have enforced specifically even as between the parties, and which therefore passed no right, legal or equitable, to the thing. For a breach of the agreement by either party an action for damages would have been the only remedy It results that, as the appellee failed to establish any right, legal or equitable, to the property in dispute, his petition should have been dismissed, and the appellant's attachment sustained. Havens, &c. vs. Foudry, &c. The judgment is therefore reversed, and the cause remanded for a judgment and further proceedings as indicated. CASE 11-PETITION EQUITY-JUNE 12. Havens, &c. vs. Foudry, &c. APPEAL FROM THE FLEMING CIRCUIT COURT. 1. A surety, who pays a debt, is entitled to stand in the place of the creditor as to all liens and equities to which he has a right to look as a security for the payment of his debt. This general equitable principle is well settled. 2. In such case it must be shown that, at the time the surety paid the debt, the creditor had a valid and subsisting lien or equity such as a court of equity would have inforced at his instance for the satisfaction of his debt. 3. A creditor is allowed to be substituted to any securities provided by the principal debtor for the indemnity of his sureties. But, as the equity is derived through the sureties, and as a consequence of their liability for the debt, whatever act or omission of the creditor may operate to discharge or release them from liability has the effect to destroy his equity. (10 Leigh, 206; 12 Ib., 387.) 4. Where a judgment against the principal debtor and his sureties is replevied by him with other sureties-the defendants in the judgments, who are only sureties for the debt, refusing to join in the bond-the latter are released from liability. The execution of the replevin bond in such cases merges the judgment, and releases the original sureties. (2 B. Mon., 303; 1 Met, 252.) 5. Where, in such case, the original sureties, thus released from liability, were indemnified by mortgage against loss, the sureties in the replevin bond who pay the debt, have no equity, as against other lien holders, under such mortgage. ANDREWS & Cox, for appellants, cited 1 Lead. Cuses in Equity, top pages, 105, 124. W H. CORD, for appellees, cited 4 B. Mon., 134; 7 lb., 303; 6 lb., 395; 11 Ib., 335; 9 Ib., 578; Ib., 399; Ib., 292; 1 Story's Eq., 478; 2 Johnson's Chy. Rep., 560; 4 Ib., 123; 12 B. Mon., 45, 137; 8 B. Mon., 295; 3 Story's Rep, 400; 8 Vesey, 388-9; 1 lb., 339; 2 Ib., 569-70; 3 Bligh, 591; 7 Johnson, 505; 4 B. Mon., 143; Havens, &c. vs. Foudry, &c. 12 B. Mon., 145; 2 White & Tudor's Lead. Cases, part 1, 214; 2 Simon's Rep., 155; 2 Hare, 646; 2 Swanston, 185; 12 Wheaton, 594; 5 Dana, 241; 2 Barb. N. Y. Ch'y. Rep.; 338; 5 Leigh, 414; 4 Watts, 38; 10 Serg. & Rawle, 132; 2 Rawle, 132; 1 Barr., 512. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: In October, 1859, Foudry executed to Havens and others two deeds of conveyance which, with the defeasance executed on the same day by the grantees, was intended to operate as a mortgage to secure and indemnify the grantees, who were sureties of Foudry in various specified debts, against loss or damage on account of their suretyship. Among those debts was a note to Kendall for $1,100, on which Davis and Northcott were bound as sureties of Foudry. Kendall having obtained judgment on this note, execution issued against all the obligors, and in May, 1860, it was replevied by Foudry as principal, with McGregor and others as sureties-Davis and Northcott, the sureties in the original debt and defendants in the execution, refusing to join in the execution of the replevin bond. The sureties in the replevin bond having been compelled to pay the debt, brought this suit in equity, claiming a personal judgment against Foudry, Davis and Northcott, and also that they were entitled, by substitution, to the indemnity provided by the mortgage from Foudry to his sureties. They furthermore allege that they executed the replevin bond at the instance of Davis and Northcott, who were to indemnify them by a transfer of their interest under the mortgage, and that their failure to join in the replevin bond was the result of a mistake on the part of the sheriff These allegations were denied, however, and were wholly unproved. The relief sought by the plaintiffs was resisted by Havens and the other mortgagees, who claim that they are entitled to the benefit of all the mortgaged property for the payment of the debts on which they were bound as sureties and which debts had been paid by them, and that the debt to Kendall having been satisfied in the manner stated, neither Davis nor Northcott, nor the replevin sureties who paid it, had any interest whatever in the mortgaged property. |