
    WOOD v. MOORE.
    (S. C., Thomp. Cas., 177-178.)
    Jackson,
    April Term, 1859.
    DEED OF TRUST. To secure surety and debt inures to creditor.
    A deed of trust made to secure a surety on a debt, and also to secure the payment of the debt itself, inures to the benefit of the creditor, and his right is not affected by a subsequent discharge of the surety from liability in a suit between them. [Kirkman v. Bank, 2 Cold., 407; Wallace v. Greenlaw, 9 Lea, 120; McRady v. Thomas, 16 Lea, 175.]
    Cited with approval: Jones v. Hamlet, 2 Sneed, 256; Kennedy v. Pitts, 5 Sneed, 91; Robertson v. Sublett, 6 Hum., 313.
   Wright, J.,

delivered the opinion of the court:

The decree of the chancellor is erroneous. There is a plain distinction between a conveyance to secure the payment of a debt, and one merely for the personal indenfnity of a surety.

In the former case the trust inures to> the benefit of the creditor, and creates a fund in his favor of which he may avail himself in order to obtain satisfaction of his debt. And in that case, the discharge of the surety, though his protection was also one of the objects of the conveyance, will have no effect upon the claim of the creditor to> the fund.

It is true the deed of trust executed by Samuel C. Simmons to the defendants, Moore and Harwood, was intended to secure said Moore and others as sureties and stayors of said Simmons in certain debts enumerated in said deed. But it is equally clear that it was also intended as security for the payment of debts themselves.

The deed recites that the said Simmons had procured said Moore to become his surety and stayor, as to certain debts, which are specifically set forth in said deed; and among them is the debt to complainants of $666.90.

He also mentions other debts which he owed, and in some of which other persons have become liable, as his sureties and stayors; and then provides that in order to- secure his said securities, stayors and other creditors- — the said Moore and Harwood — the trustees should apply the assets in the deed of trust, first to' the payments of the debts on which he had given security and procured stayors, and the debts for borrowed money and certain other debts therein named, and next, to the payment of his other creditors.

This language is plain. The-complainants have a right to require Moore and Harwood, the trustees, to pay them tbeir ratable part of the trust fund with the other creditors of the first class in the deed, the assets being suificient to pay all the creditors.

The fact that Moo-re succeeded, after the execution of the deed, in a litigation with complainants, in getting discharged from liability as to their debt, upon a plea of non est factum or other defense, can in no way change or destroy their right. The principle settled in Jones v. Hamlet, 2 Sneed, 256, and Kennedy v. Pitts et al., 5 Sneed, 91, is, it seems to us, decisive of the case. Robertson v. Sublott, 6 Hum., 313.

Decree reversed.  