
    A. W. Thompson v. Solomon & William Crocker.
    Defendants executed, and delivered to the plaintiff, the following paper: “ I promise and agree to execute a good and legal mortgage to A. W. Thompson for any piece of land he may wish that will be sufficient to pay him a debt of one hundred and fifty dollars, which we owe him, for defending a case in the Court of Equity, James Tollison against us. Given under our hands and seals, this 12th April, 1828. It shall be as much as one hundred and fifty acres and no more, except we wish it.” S. Crocker, one of the defendants, subsequently, did execute a mortgage to the plaintiff, which was accepted by him, Held, that according to the true construction of the instrument, it was an acknowledgment of a debt due by both, with an agreement that one of them should give a specific lien, by mortgage, to secure the payment; and, that, notwithstanding the delivery of the mortgage, the debt remained the debt of both, and that the action would lie against both. Nonsuit granted below set aside.
    
      Before E VANS, J., at Spartanburg, Fall Term, 1838.
    This was an action on the following paper: “ I promise and agree to execute a good and legal mortgage to A. W. Thompson, for any piece of land he may wish, that will be sufficient to pay him a debt of one hundred and fifty dollars, which we owe him for defending a case in the court of equity, James Tollison against us. Given under our hands and seals this 12th April, 1828. It shall be as much as one hundred and fifty acres, and no more, except we wish it.” Signed and sealed by defendants.
    Solomon Crocker, subsequently, did execute a mortgage to the plaintiff, which was accepted by him. The- circuit judge was of opinion, that the agreement above recited was only executory, and was subsequently executed and discharged, by the delivery of the mortgage. Under this view, the plaintiff submitted to a nonsuit, with leave to set it aside.
   Curia, per Evans, J.

Upon a review of this case, I am satisfied I was wrong, in nonsuiting the plaintiff on the circuit. I think, the true construction of the instrument is an acknowledgment of a debt due by both, with an agreement that one of them should give a' specific lien, by mortgage, to secure the payment. This was done by Solomon Crocker, but the debt still remained the debt of both, and an action would lie against both on this paper. This construction is confirmed by the fact that the instrument was not delivered up when the mortgage was executed. A creditor may take a mortgage from one joint obligor to secure a debt due by both ; and that I take to be, in substance, what was intended in this case. The motion, to set aside the nonsuit, is granted.

Henry and Bobo, for plaintiff.

Young and Dean, contra.

Gannt, O’Neall, Eakle, Butler and Richardson, Justices, concurred.  