Osborn v. Noble

Citations

• 46 Miss. 449

Syllabus

<p>1. Subrogation — principal and surety — creditor. — It is well settled that, if a creditor obtains a mortgage or other security from the principal debtor, the surety is entitled to its protection. So, if the surety has obtained indemnity from his principal, the creditor may avail of it, and have satisfaction of his debt out of it.</p> <p>2. Same — indemnity against contingent liability. —If the indemnity is against a contingent liability, there can be no substitution until the liability has become absolute.</p> <p>3. Same — same—distinction between a security made to the surety TO SECURE THE DEBT, AND ONE TO SAVE HIM HARMLESS EROM A CONTINGENT liability. — If a mortgage or other security is given to the surety, not to secure the debt or provide a fund for its payment, but to save him harmless from a contingent liability or loss, that contingency must come, and the injury be sustained, before a right to the indemnity inures to the creditor.</p> <p>i. Same — same — same — security for personal benefit oe surety.— Where the contract is for the personal benefit of the surety, in opposition to the idea of a pledge for the debt, or providing means for its payment, the creditor can claim only such rights and remedies as the surety had. If he has not been damnified, and the conditions of the mortgage or other contract of indemnity are unbroken, the surety himself could assert no remedy, nor could the creditor claiming through him, and in his stead, have substitution, i' - ,</p> <p>5. Same — SAME —WHERE THE SECURITY IS EOB THE DEBT, AS WELL AS the ultimate protection OE the surety. — Where the security is for the debt, as well as the ultimate protection of the surety, it inures to the creditor; and it is of no moment whether it was given at the time the principal obligation was incurred, or afterward, or whether it was known at the time to the creditor or not. The creditor has an interest in it; becomes a cestui que trust; the fund or property at once assumes a trust char