
    Freeland v. Briscoe.
    There are no presumptions against sureties; they can only be held to the precise terms of their obligation. C. C. 3008.
    A surety will be discharged where he cannot, upon payment, be subrogated to the rights of the creditor. C. C. 3021, 3022.
    A mortgage executed to secure the payment of a judgment stated' in it to be the property of the mortgagee, will be declared void on proof that tbe judgment did not belong to him.
    APPEAL from the District Court of Madison, Selby, J.
    
      Thomas and Snyder, for the appellant.
    
      A. P'ierse, Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Slideli, J.

Freeland having obtained an order of seizure and sale upon a mortgage executed in his favor by Briscoe, an injunction was obtained by Briscoe. The cases were consolidated, and a judgment having been rendered which partially sustained and partially rejected the claims of Freeland, Briscoe appealed.

The mortgage which has given rise to, tbis controversy was executed by Briccoe, in 1842, to secure the payment of two alleged judgments obtained by Freeland, one against John Briscoe in the United States Court of Louisiana, for $7,484 80, and interest, and the other against Bowen, the surety upon a note for which John Briscoe was the principal debtor, in the Circuit Court of Claiborne county, Mississippi, for $10,017 00. It was stated in the mortgage as the agreement of the parties that, the security given by the mortgage for the payment of the sums mentioned was received in full discharge of ail the securities in the original notes in which the judgments were obtained. By the power 6f attorney annexed to the mortgage Freeland states that, the mortgage is to be executed to secure the payment to himself of about $19,000 due to him by John Briscoe. At the time of executing this mortgage Samuel M. Briscoe transferred to Wilcox, the attorney of Freeland, who accepted the mortgage for him, two notes of Amis Sy Butterworth, amounting to $3,888, which were imputed in the act of mortgage as a credit upon the alleged judgment rendered in Mississippi.' The petition for injunction charged that the mortgage had been obtained'from Briscoe through fraud and misrepresentation by Freeland and his attorney; that there never had been a judgment rendered in Mississippi in favor of Freeland against Bowen, as surety of John Briscoe. The prayer was, that the whole mortgage be declared a nullity, and for judgment against Free-land for the amount of the two notes transferred to him and imputed as a payment upon the Mississippi judgment. There was also an alternative prayer that, if not entitled to full relief, the mortgage might be declared null, so far as it related to the Mississippi judgment, and that the two notes might be imputed as a payment upon the judgment rendered in the United States Court. By a supplemental plea it was farther alleged that, the nullity of the mortgage had become res judicata in an antecedent litigation between the parties.

It is conceded that, at the time when the mortgage was executed, the judgment in Mississippi was not in favor of Freeland, eo nomine, as stated in the act of mortgage. The judgment was in favor of the Commercial Bank of Rodney. The note upon which it was obtained was once held by Freeland, who discounted it at the bank. ' The bank obtained judgment upon it against Bowen, nominally the co-obligor, but in reality the surety of John Briscoe. The bank also brought suit upon it against Freeland, as endorser. That the bank was at one time the holder of the note is conclusively shown, and Freeland has failed to show that he has ever paid it, or become the owner of the judgment. That John Briscoe desired that Freeland should be secured against his liability on the note is satisfactorily shown, and counsel are perhaps warranted in saying that no moral fraud or intentional deception was practised by the mortgagee, or his attorney, upon Samuel M. Briscoe. But the mortgage, so far as that claim was concerned, was based upon the alleged existence of a judgment which did not exist; it is not satisfactorily proved that Samuel M. Briscoe knew the true state of the case, to wit, that the judgment was owned by the £bank, and that Freeland had not paid, nor was the owner of the note. No liability of Samuel M. Briscoe for the note of John Briscoe and Bowen, is proved. He stands in this matter under the evidence, whatever may be the real state of the case, as a voluntary surety for an antecedent liability of John Briscoe, by the mortgage of his own lands and slaves.

The law applicable to such a state of evidence is clearly in his favor. The judgment in Mississippi, which he undertook to secure, did not exist, as represented. It was not owned by the party to whom the mortgage was given. There are no presumptions against sureties; they can only be held to the contract as made — to the precise terms of their obligation. Fidejussio est strictissimi juris, el non clurat vel extenditur de re ad rem, de persona ad personam, de tempore ad tempus. Where the principal’s indebtedness does not exist, the collateral contract is a nullity. The representation was that Freeland was the plaintiff in the judgment; and the mortgage was to secure its payment to him. But it turns out that he was not the creditor, and, however innocent the representation, the surety cannot be held. The surety is entitled to subrogation upon paying the creditor; but if the mortgagor Briscoe should pay Freeland $10,017, Freeland could not, so far as the evidence informs us, transfer to him what he represented himself as owning, a judgment against Bowen, and the note of John. Briscoe upon which it was obtained. - See Civil Code, arts. 3008, 3021, 3022.

But it is said that, even though Freeland had ,not paid the note, yet under his liability as endorser he would have had a right to sue John Briscoe for an indemnity, and may therefore hold on to an indemnity although irregularly obtained. This may be true; but then it is not shown that Samuel Briscoe was liable as principal debtor, and there is therefore no such equity established against him. We are therefore of opinion that the mortgage, so far as it was given to secure the alleged judgment in Mississippi, cannot be declared valid under the evidence presented to us.

There are however circumstances presented by this record, which induce us to leave the rights of the parties open as to the Mississippi judgment and the note upon which it was obtained ; especially as the jury refused to restore to Samuel M. Briscoe the notes of Butterworth &f Amis’, and sustained the imputation of their amount to the Mississippi judgment. This finding shows that, in the opinion of the jury, Samuel M. Briscoe was not a mere volunteer jn this matter; and although we do not feel authorized, under the evidence, to affirm the verdict in that particular, it has formed with us a strong inducement to leave the controversy partially open in favor of both ' litigants, by reserving to Freeland whatever rights he may have acquired under the mortgage, or may otherwise have, with regard to the Mississippi judgment and the note upon which it was obtained, and to Samuel M.sBriscoe his rights, whatever they may be, to the reeision pro tanto of the mortgage, and the restoration of the notes of Butterworth Sf Amis, or their value.

We would have been disposed to remand the cause upon those points, were it not that the pleadings and proceedings are complicated to a degree which would embarrass the examination of the case.

As regards the plea of res judicata: We consider it untenable. To explain all the proceedings which are exhibited by the confused and complicated records before us, and upon which the question of res judicata turns, would be an unnecessary waste of time. It suffices to say that, the consent judgment which is pleaded as res judicata, expressly refers to the other proceedings than those in the suit in’which it was rendered. Interpreted by the recitations contained in it, and by the other suits to which it refers, it is obvious that it was understood by the parties and by the court as a perpetuation of the injunction arresting a prior order of sale, applying merely to the executory proceedings instiuted in the former case, and not concluding the parties upon the issues presented in this cause, and then pending.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the said Thomas Freeland be recognized as a mortgage creditor for the sum of $7,484 40, and interest thereon at the rate of ten per centum per annumfrom the 4th day of January, 1840, until paid, upon the lands and slaves described in the act of mortgage, executed on the 19th day of July, 1842, before Malcolm Wallace, notary, by said Samuel Af Briscoe to said Thomas Freeland, of which mortgage a copy is on file in this cause; and that the said lands and slaves be seized and sold to satisfy the said sum, interest, and costs of this suit in the court below; and that the injunction by said Briscoe obtained be dissolved. And it is further decreed- that, in all other respects, this suit be dismissed as in case of non-suit, and with- a full reservation of the rights and liabilities of the said Samuel M. Briscoe and the said Freeland respectively, with respect to so much of- said mortgage as was given to secure the alleged judgment rendered in the Circuit Court of Claiborne county, Mississippi, and with-respect- to the judgment rendered in Mississippi in favor of the Commercial Bank of Rodney against Brown, and with respect to a certain note made by A. G. Brown John Briscoe in favor of J. B. Warren for $9,333 30, dat’ed 5th- May, 1839, being the note more fully described in the record of this cause, and With respect to the two notes of Amis 8f Bullerworlh mentioned'in said act of mortgage. And- it is further decreed that the síM'-Freeland pay the costs of this appeal.  