
    William B. Ross vs. Wallace Wilson, Andrew Woods, William G. Doyle, and Marvel M. Garey.
    Where a conveyance is made to sureties of the grantor, conditioned that the conveyance shall be void if the grantor pays the debt on which the grantees are sureties, otherwise to remain in full force and virtue, although the creditor knows nothing of the deed ; yet as its provisions are for his benefit, his assent to it will be presumed, and the deed will be held to he not only as an indemnity to the sureties, but as a security for the debt; the sureties will be regarded as trustees for the benefit of the creditor, and will have no right to discharge or defeat the trust, unless it be to a purchaser for a valuable consideration without notice.
    B. W. & Co. were indebted to R.; and W., one of the firm of B. W. & Co., gave his note with G. & D. as sureties thereon, for the payment of the debt. W. subsequently conveyed certain property to G. & D. on condition that if W. should pay the debt to R. and also a note due by W. to D., then the conveyance should be void ; otherwise to remain in full force and virtue, which conveyance was duly recorded ; B. W. & Co. were also largely indebted to W. W., and W. W. having obtained judgment against B. W. & Co., agreed with G. & D. to pay the debt W. owed D., if they would release all interest acquired by them under the conveyance to them by W., and they did so ; and W. then conveyed the same property to W. W.; R. .filed a bill to subject the property mentioned in the conveyance to G. & B. to the payment of his debt: Held, that the conveyance to G. & D. constituted them trustees for the benefit of R., and they did not discharge the trust by the release to W. W., he having notice of the debt to R.; but as the conveyance was also intended as a security for the debt due by W. to B., and as W. W. paid the debt to D., he ought, in equity, to be substituted to the rights of D.; that the property therefore should be sold, and the proceeds divided between R. and W. W-, in proportion to the amount-due R. and the debt W. W. paid to D.
    Where a conveyance, intended as an indemnity to sureties and also as a security for the payment of the debt, describes the grantees as indorsers, when in fact they signed their names on the face of the note as sureties, the description will be considered as substanlially correct.
    'Parol proof, in equity, is admissible to show that a mistake occurred in drawing an instrument, though it is to be received with caution and distrust.
    
      Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    William B. Ross filed his bill in the superior court of chancery, charging that on the 1st day of March, 1838, the firm of Brown, Woods, & Co., being indebted to him, Andrew Woods, a member of the firm, gave him their promissory note for the sum of six thousand and sixty-seven dollars and seventy-two cents, payable on the 1st day of March, 1839, at the office of the Mississippi <fc Alabama Railroad Company at Brandon, with the names of William G. Doyle and Marvel M. Gary signed on the face of the note as sureties; that the debt having been sometime due, further time of payment was given with the express view of getting the debt well secured, and it was agreed that the note should be given with Gary & Doyle as indorsers thereof, and as a further security for the payment of the debt it .was then also agreed that Woods was to execute a mortgage •on certain real and personal estate, as complainant understood -from his agent who transacted the business for him, and as he charged to be true; • that in pursuance of such agreement Woods, on the lOth'day of April, 1838, conveyed to Doyle and Gary certain lands and six slaves, conditioned “ that if the said Andrew Woods shall, will, and truly pay, or cause to be paid unto the President, Directors & Company of the Brandon Bank, the sum of six thousand dollars, or thereabouts, being ■the amount of a certain note drawn by Brown, Woods & Co., dated in March, 1838, and payable twelve months after date in favor of William B. Ross, negotiable and payable at the Brandon Bank, on which note said Doyle and Gary are indorsers, and also a note drawn by Brown, Woods, & Co., . -payable to the said William G. Doyle for two thousand two hundred and ten dollars, .due the 1st day of January last, on which is a credit of three hundred and fifty dollars; when the said note, first above specified, shall fall due, and the last named note on or before the maturity of the said first mentioned note, then this deed to be null and void ; otherwise to remain in full force and virtue.” Why the mortgage was made to Doyle tfc Gary, instead of being made direct to him, complainant did not know ; but he believed and charged that the object was, by one instrument, to secure the debt due to himself, and also the debt due to Doyle; that Doyle and Gary were, by mistake, described in the mortgage as indorsers, instead of joint makers of the note; why it was said in the condition to the mortgage that the money was to be paid to the Mississippi <fc Alabama Railroad Company, complainant could not tell, but presumed it was because it was supposed he would have the note discounted at that bank; that he never did have it discounted, but the whole sum being due and unpaid he instituted suit in the circuit court of Carroll county and recovered judgment thereon; that an execution was issued on the judgment and returned “ nulla bona ; ” that all of the makers of the note were insolvent, and his only means of collecting his debt, or any part of it, is by recourse to the mortgaged property. Complainant charged that Woods being indebted to Wallace Wilson, and having no means of payment, he, Doyle, Gary & Wilson, combined together to defraud complainant of his- lien on the land and slaves, and to appropriate them to the payment of the debt due by Woods to Wilson, notwithstanding Wilson had express and full knowledge of the mortgage, and that it had been duly recorded in Carroll county, where the property was bn the same day it was executed, and that the debt of complainant was unpaid; that to consummate their object, William G. Doyle, on the 24th day of June, 1839, and Marvel M. Gary, on the 26th day of the same month, by writing under seal, relinquished, or attempted to relinquish, the mortgage; copies of the mortgage and release were filed, as exhibits to the bill, and Woods then sold the property to Wilson in accordance with the object of their combination. Complainant further charged that the whole of the property, at the current prices, would not be sufficient to pay his debt, and that the hire of the slaves and the rents and profits of the land would all be necessary to the satisfaction of his demand; and that he verily believed Wilson, who had the property in possession, would sell or run the slaves out of the state, unless restrained. Andrew Woods, William G. Doyle, Marvel M. Gary, and Wallace Wilson, were made defendants, and the prayer was that a receiver be appointed to take charge of the land, and slaves, and rent and hire them out, and hold the proceeds of the rent and hire, subject to the order of the court, or if that could not be done that injunction issue restraining Wilson from removing the slaves beyond the jurisdiction of the court, and that he be required to give bond and good security for the delivery of the slaves whenever called on by the order of the court, as well as for the payment of the rent of the land and the hire of the slaves; and that the rent of the land and hire of the slaves be decreed to be paid to complainant; and also that the land and slaves be sold, and the proceeds applied t’o the payment of his debt. An injunction was granted by the Hon. 1!. H. Buckner, restraining Wilson from removing the slaves, and requiring him to give bond and security to have the slaves forthcoming to abide the order or decree of the court. William B. Ross answered, saying he knew nothing of the note or mortgage mentioned in the bill, and required proof of the allegations in reference to them ; he admitted that Brown, Woods & Co. were indebted to William G. Doyle, as charged by complainant, and that Andrew Woods, on the 10th day of May, 1838, executed a mortgage to William G. Doyle and Marvel M. Gary on the land and slaves described in the mortgage, though he knew nothing of the object of the parties in making the mortgage, unless it was to secure the debt due to Doyle. Respondent admitted that Brown, Woods, & Co. were indebted to Wilson, Carpenter, & Co., of which firm respondent was a member, twenty odd thousand dollars; that they recovered a judgment for their debt, and were unable to collect the money by an execution at law, and respondent charged that they were about to institute suit to set aside the mortgage on the ground of fraud, and subject the mortgaged property to the payment of their debt, when Doyle became alarmed and came to respondent, admitted the mortgage was fraudulent, so far as complainant was concerned, and proposed to release the mortgage, provided respondent would pay his debt; respondent agreed to do so and did pay the debt to Doyle, and in accordance with his promise released the mortgage on the 24th, and Gary released it on the 26th of June, 1839; and respondent then gave a fair and valuable consideration for the property described in the mortgage. Respondent admitted he knew of the existence of the mortgage, but denied that he knew the debt to complainant was unpaid; he denied all the charges of confederation or combination to defraud complainant or any body else, and every other charge of fraud made against him in the bill, and stated that his sole and only object of getting the mortgage released was to procure, if possible, a portion of his debt. Andrew Woods answered, and admitted that the firm of Brown, Woods & Go. were indebted and executed their note with Doyle & Gary, as securities thereon, for the amount and in the manner charged in the bill, and also that further time was given in consideration of security being given upon the note; but he denied that the mortgage was given or intended to be given, as a further security for the debt, to the complainant, or that such a thing was spoken of by the complainant or his agent, or thought of by respondent at the time the mortgage was executed ; respondent admitted he executed a mortgage on the property, and at the time mentioned in the bill; but he denied that the complainant knew anything about its execution, at the time, or that it was to be executed; and he denied that it was in any manner or way intended for the benefit of complainant; respondent averred that his sole and only object of executing the mortgage was to secure the debt of $2210, due to Doyle, and indemnify Doyle & Gary against any loss they might sustain by their indorsements for the firm of Brown, Woods & Go., and that the note to the complainant was named in the mortgage, to prevent Wilson, Carpenter & Co. from selling the property under a judgment which they were then about to recover, and did recover the next day, for twenty thousand dollars, and upwards, against Brown, Woods & Co. Respondent stated that after the debt of $2210 to Doyle had been paid and satisfied, and the mortgage released, he sold the property therein described to Wallace Wilson for a fair and valuable consideration, in discharge of an honest debt; he denied all fraud or combination with Wilson, Doyle, or any other person, with the design or wish to defraud the complainant or any body else. The answers of William G. Doyle and Marvel M. Gary were almost verbatim the same as the answer of Andrew Woods, the only substantial difference being the statement of Woods, that he sold the property to Wilson for a fair and valuable consideration, &c. The deposition of Ephraim R. McLean, read by the complainant, proved that deponent, as the agent of complainant, was about to institute suit against Brown, Woods & Co. and so informed Woods, and Woods agreed to secure the debt if suit was not brought and time was given to pay it; that he agreed to extend the time of payment twelve months, and Woods then made the note with William G. Doyle and Marvel M. Gary as sureties thereon, upon which the judgment in favor of complainant mentioned in the bill was founded ; that it was also clearly his understanding, derived from the conversations of Woods, that Woods was to execute a deed of trust, on his individual property, to Doyle & Gary, as an additional security for the payment of the debt due to complainant, and he informed complainant that such was Wood’s agreement; deponent further testified that after the mortgage was released he asked Gary why he executed the release, and Gary stated that his object was to prevent the property being sold for the payment of the debt due the complainant; and that Wilson also informed him that he had paid Doyle about two thousand dollars to release the mortgage. On being cross-examined, he said he was not interested in any way in the result of the suit; that at one time he made a verbal promise to complainant to pay one-half of the debt, but after the execution of the note upon which the judgment Was founded he no longer considered himself in any manner bound for any part of the debt, and moreover the complainant had given him a full release ; that neither Doyle or Gary was present when he conversed with Woods about giving security for the payment; Woods did not, in so many words, say he would give a deed of trust to complainant, but he said he had property sufficient to secure, and he preferred securing it in that way to being sued, and deponent understood that he was to give the deed of trust.
    
      The deposition of Thomas B. Wadlington, read on behalf of the defendants, proved that deponent was present when the note given by Brown, Woods & Co. to complainant, or to his agent E. R. McLean, was executed; that the agent of complainant agreed to give twelve month’s time on the debt, provided the note was satisfactorily secured ; the indorsements of William G. Doyle and Marvel M. Gary were offered and accepted, and appeared to be satisfactory to Mr. McLean; and no other security was asked or offered; the note was written by Richard Small, Esq. On cross-examination, he said at the time the note was executed he was a member of the firm of Brown, Woods & Co. but he was not then, at the time his deposition was taken ; that he had no interest whatever in the result of the suit, and he had no other interest in the note at the time it was given than to see it paid.
    William G. Doyle, whose deposition was taken by the defendants, proved that he was present in 1837 or 1838, he thought, when E. R. McLean the agent of complainant, rode up to Andrew Woods and said he was on his way to Carrollton to institute suit against Brown, Woods & Co., but he agreed if Woods, or Brown, Woods & Co. would give a note payable twelve months after date at the Mississippi & Alabama Railroad Company, indorsed by deponent and Marvel M. Gary for the debt, he would forbear suit, and Woods did give the note; that was the only note of the same kind deponent ever indorsed for Brown, Woods & Co. and the only note of any kind he ever indorsed for them upon which Marvel M. Gary was also an in-dorser. No other security was asked or promised, so far as deponent ever heard, than the indorsement of Gary and himself. When the mortgage mentioned in the bill was executed, neither the complainant nor his agent was present, and neither of them knew that it was to be executed; the mortgage was executed to secure the debt due deponent by Brown, Woods & Co., and the debt to the complainant was only named to prevent the property from being sold under a judgment which Wilson, Carpenter & Co. were about to recover against Brown, Woods & Co. for twenty odd thousand dollars; it was named in the mortgage at the sug-gestión of deponent, and he understood the chief inducement of doing so was to defeat Wilson, Carpenter & Co. in the collection of their debt. Deponent further testified that Woods sold one of the negro men mentioned in the mortgage, but whether it was with the assent or knowledge of complainant or not he did not know. The debt due deponent by Brown, Woods & Co. was paid by Wallace Wilson before the mortgage was released; since Wilson has been in possession of the land included in the mortgage, he has put about three hundred and eighty dollars’ worth of improvements upon it. On cross-examination he stated he heard only one conversation between the agent of complainant and Woods, and they might have had others, but if they had, he never heard of them; the note was written by Thomas B. Wadlington, and deponent indorsed it at the request of Woods; the mortgage was executed at his suggestion, and was designed especially to secure the debt due him; that he did not intend perpetrating a fraud on Wilson, Carpenter & Co., and if any fraud was committed, Ross was no party to it; Ross was not present when the mortgage was executed, and he informed deponent that he knew nothing about it,- until sometime afterwards; deponent thought Woods informed him when the mortgage was given that his, (Woods’s,) object was to secure the debt due deponent, and to save his securities, and also to defeat the collection of Wilson, Carpenter & Co.’s claim; the mortgage was released at the request of both Woods and Wilson, and he did not give the release with the view or for the purpose of defeating complainant’s lien on the mortgage property; and if there was any combination to defraud complainant, deponent never heard of it; the only benefit he derived from the release was the payment of his debt by Wilson". Notice was given that a motion would be made to exclude the deposition of Doyle, because he was a defendant to the suit, and there was no order of the court granting leave to take his deposition. Upon the foregoing pleadings and evidence, the cause was submitted to the vice-chancellor, on final hearing, and on the 18th day of June, 1844, he rendered a final decree dismissing the bill at the costs of the complainant, from which decree the complainant appealed to this court.
    
      
      D. Mayes, for appellant.
    If a creditor obtains a mortgage or other security from the principal debtor without the knowledge of the surety, the surety has the benefit of it, and if the creditor surrender or release such security without the consent of the surety, he thereby releases the surety to the extent of the security surrendered. 1 Story’s Eq. 481, and authorities there cited.
    And so in like manner if a surety has obtained an indemnity of any kind from his principal, his creditor is entitled to it, and may resort to it in equity for satisfaction. 1 Story’s Eq. 481, and authorities there cited. In such case the debt is the principal thing, the mortgage or security is the incident, and he who owes the debt owes the security. Incidents follow their principals. When the surety pays his principal, the debt is not extinguished in the eye of equity, but the security is considered as having purchased the debt from the creditor, and so entitled to all the rights of the creditor. Meigs’s R. 173,174, in notes.
    And when the surety has obtained an indemnity for a debt as the creditor has a right to look to him for payments,, he has. a right to all his means of indemnity. A co-surety has. the same right. In other words, whoever lias a right to demand payment from the indemnified surety, has a right to all his indemnities. Gomez v. Lazarus el al. 1 Dev. N. C. Eq. R. 205.
    Were this then a case of mortgage to indemnify securities, we clearly had a right to it.
    Much stronger is the present case, it not being a mortgage to indemnify securities, but a conveyance to the securities, to become void (not upon indemnifying them,) but if the debt shall be paid at maturity. It is plainly and singly a conveyance to them, to secure the prompt payment of Wilson’s debt by Wilson to Ross.
    Doyle and Garey then held the lands and slaves so far as Ross’s debt was concerned, not as a present indemnity to them* but in trust for the payment of the debt to Ross, the property being pledged not for their indemnity but expressly to pay the debt. And a trustee can, by no act of his, prejudice the rights of the cestui que trust. Sheppard v. McEvans, 4 Johns. Ch. R. 136. And the trust will follow the estate into the hands of any person to whom it has been conveyed with knowledge of the trust. Ibid. And if the trust has been created without the knowledge of the trustee, and before he obtain knowledge the trustee conveys without his consent, those who take under the second conveyance will be charged with the trust. Ibid. And see also Moses et al. v. Margatoyd et al. 1 Johns. Ch. R. 119; Murray & Winter v. Bollou Sp Hunt, 1 Johns. Ch. R. 566; Duke of Cumberland et al. v. Coddington et al. 3 Johns. Ch. R. 261.
    A deed of trust in the usual form is but a mortgage with power of sale in the trustee.
    All that is wanted to constitute the deed of Woods a deed of trust of the common kind, is the absence of the power of sale in Doyle and Garey, if Woods made default on the maturity of the note.
    The writing purporting to be a release of the mortgage, can only operate as a renunciation of the trust. And equity will not permit a trust to fail for want of a trustee. The court will either appoint a trustee or execute the trust itself as the nature of the case may require. Story’s Eq. 240, 241, 242.
    The agreement which led to the release was a fraud on Ross. It was virtually a sale by Doyle for the amount of his debt and a ratification by Garey, and the end and object to deprive Ross of his security. The jealousy and watchfulness with which equity scrutinizes all acts of persons standing in the relation of trustees, or fiduciaries, is remarked on in 1 Story’s Eq. 316, 320.
    Wilson was a purchaser not only with full notice but, the tempter (by a large payment,) of the trustees to betray their trust. It is true (and should be so) that if the property come to a bona fide purchaser for valuable consideration without notice, he will be protected, but this is a merit to which Wilson can by no means pretend ; he had notice, took the property in payment of a preexisting debt, and by collusion with the trustees attempted to defeat the trust.
    
      
      William G. Thompson, for appellees.
    The prayer of the bill is not, technically, for a foreclosure of the mortgage. It is, simply, that the property may be sold to pay complainant’s claim. It is difficult to determine from the frame of the bill whether its object is to seek a foreclosure of the mortgage in favor of complainant, or the aid of chancery for subjecting the property, as equitable assets or estate, to his judgment, or the aid of chancery for removing obstructions in the way of enforcing his judgment-lien on the property.
    These three objects are distinct, each from the others, and must rest upon distinct stales of fact. If the object be to remove obstructions in the way of enforcing complainant’s judgment lien, equity will not interpose as against Wilson. He had a prior judgment for an amount evidently more than,sufficient to cover the property. His equity, as a creditor, is equal to that of complainant. He holds the property by purchase, having taken it in payment of his judgment. If the object be to subject the property, as equitable estate, not subject to sale under execution, chancery will lend its aid only when the remedy at law has been exhausted. Walker v. Tudd, 3 Dana’s R. 509; 4 Johns. Ch. R. 691; 1 Freeman’s Ch. R. 307.
    There is no proof in the cause that complainant has had execution issued on his judgment, and returned nulla bona, as the bill alleges.
    If the object be to foreclose the mortgage in favor of complainant, it is contended that there are insuperable objections to the relief sought. In a proceeding to foreclose a mortgage, the production of the note or bond secured is indispensable, unless its absence be satisfactorily accounted for and indemnity be offered. This is not rendered unnecessary by the recital in the mortgage, and the admission of the mortgagor in his answer. Chewniug v. Proclor, 2 McCord’s Ch. R. 14; Burgwin v. Richardson, 3 Hawks, 203.
    Wilson, the purchaser from the mortgagor, is the main defendant in interest. Complainant must establish his claim by full proof as against him. Wilson is not bound by the admissions of Woods, through whom he derives his claim, any farther than as to the fact of the execution of the note and mortgage. If Woods had not sold the property, and Wilson were not a party in this cause, the production of the note would still be required before a decree of foreclosure. In an action at law on a promissory note, the plea of the general issue admits the execution of the note ; yet a verdict without the production of the note, or proof equivalent to that, could not be sustained.
    A decree of foreclosure cannot be rendered without first setting aside the release entered by Doyle and Garey. There is no proof, whatever, showing that the mortgage was released through fraud, on the part of Doyle and Garey, or of Wilson, as is charged in the bill. The single question to be inquired into on this point is, whether Doyle and Garey had a right or power to .give back to their principal, Woods, a security he had given them for their indemnity as his sureties, the debt being unpaid. It is admitted that a creditor may avail himself of a security given by the debtor to his surety. The general principle is well established. And the creditor may file a bill in his own .name, to get the benefit of a mortgage given to the surety. But this is not an original and independent right belonging to the creditor ; it is one which he derives entirely through the surety; it is rather, indeed, a favor allowed him, out of regard to the rights of the.surety ; it is not a separate and distinct right, but is wholly dependent upon, and follows the right of the surety. When the latter takes a security from his principal, it is done for the purpose of providing a fund to which he may resort for indemnity, if he has the debt to pay. And whilst he holds the security, he may be supposed to accord to the creditor the privilege of subjecting it to his claim, inasmuch as that would be a mode of effecting for him the very object for which he took the security. And it is upon this ground, that the creditor is allowed to proceed upon the security, upon the supposed assent of the surety, which it would be unreasonable and perverse for him to withhold. But, if the right of the surety is extinguished, and he has no power to do any act-himself, in regard to the security, he .can give effectively neither assent nor dissent touching it; how can any right possibly remain to the creditor? It is only upon a subsisting indemnity held by the surety, that the creditor can enforce his claim.
    
      William Thompson, on the same side.
    Where a mortgage is made for the personal indemnity of the indorser, and the intention is not to secure the debt, the creditor cannot subject the property to the debt. As bearing on this point, see 1 Devereau’s Eq. R. 205, 221; Chitty on Bills, 4S1.
    That in this case the mortgage was made for the personal indemnity of the securities only, is evidenced, 1st, by its having been made sometime after the note on which the securities it is said are liable, was given. 2d. The sureties are stated in the mortgage to be indorsers, and therefore as they were not certainly and absolutely liable, it is to be understood that the object was to indemnify them against their contingent liability, and not to set apart this fund, in controversy, to pay the debt.
    The court of equity will not compel a party to give up a legal advantage which he can conscientiously hold.
    Ross’s judgment was rendered after Wilson’s. Ross advanced no new consideration, at least he did not part with his money or his property. When Doyle & Garey became sureties for Brown, Woods & Co. he only got an old debt secured.
    There was no agreement to give this mortgage when the note was executed. The mortgage was given sometime afterwards, without Ross’s knowledge, and for the security or indemnity of the sureties, and they could release it and Wilson with clean hands.
    The recording of a mortgage is, of course, to give notice to subsequent purchasers, &c. The mortgage, as recorded, can never overreach Wilson.
    But Ross desires to correct, amend, reform it; there is no proof of knowledge on the part of Wilson, other than that furnished by the record.
   Mr. Justice Clayton

delivered the opinion of the court.

Brown, Woods, & Co. were indebted to William B. Ross, in the sum of $6000, and on the 1st of March, 1838, Andrew Woods, one of the firm, gave his note at twelve months for the same, with M. M. Gary and William G. Doyle as sureties. The same firm was indebted very largely to Wallace Wilson. On the 10th of April, 1838, Andrew Woods conveyed to Doyle & Gary certain property and estate, on condition that if he, Woods, should pay the said note to William B. Ross, indorsed by Doyle & Gary, also a note due from Woods to Doyle for about $2,000, then the said conveyance to be void, otherwise to remain in full force and virtue.” This deed was duly recorded. In June, 1839, Wallace Wilson, having previously .obtained a judgment on his debt against Brown, Woods & Co., .•agreed to pay the debt of William G.-Doyle, if Doyle & Gary .would release to him all interest, under the conveyance above ■described. This they both did. This ■ bill is filed by Ross to ■subject the property to his debt, under the conveyance. Andrew Woods also conveyed to Wilson. The vice-chancellor dismissed the bill, and the cause thence comes to this court.

Although Ross knew nothing of this deed, at the time it "was executed, yet as its provisions were for his benefit, his assent to it will be presumed. The conveyance was intended not only to indemnify Gary & Doyle against their liability as sureties, but manifestly to secure the payment of the debt. It was to be void, on condition that the debt was paid, otherwise not. What were formerly conditions are now regarded as trusts. Garey & Doyle were by this conveyance made trustees for the benefit of Ross. They had no power or right to discharge the ■trust or to defeat it, unless to a purchaser for valuable consideration without notice. Wilson, the purchaser in this instance, had notice; he therefore took the estate subject to the trust, and charged with the payment of the debt. In his answer he says, that he did not know whether the debt was paid or not; it was his duty to have inquired. Even if he had agreed to pay money for the estate, instead of merely satisfying his debt, it would have been incumbent upon him to have seen to its application to the object designated in the conveyance. 2 Sug. on Yen. and Pur. 32. He however, advanced no new consideration, except that he agreed to pay the debt of Doyle ; and he therefore does not occupy the attitude of a purchaser for valuable consideration.

An objection is urged to the complainant’s right of recovery on the ground of variance, between the note and its description in the deed. The only difference is that Doyle & Gary are described in the deed as indorsers, when in truth they are sureties upon the face of the note. This difference could not have deceived the parties. The description is substantially correct. The bill alleges that there was a mistake in drawing the instrument, and the proof of the mistake by the depositions is abundant and unquestionable. Parol proof in equity is admissible, to show that a mistake occurred in drawing an instrument; though it is to be received with caution and distrust. See Peques v. Mosby & Kyle, and Lauderdale v. Hallock & Bates, decided at this term. Other objections are taken to the proceedings, which we think are not to be sustained.

On the whole, the decree must be reversed and the cause remanded. The property conveyed is declared to be subject to the debt of Ross. But as Wilson has paid the debt of Doyle, which was equally secured by the conveyance, he is entitled to stand in the place of Doyle.

A decree must be entered in the court below, directing that if the debt of Ross be not paid within three months from the date of such decree, that the said property must be sold on the terms usual upon foreclosure of a mortgage; that an account be taken of the amount due to Ross and Wilson upon the debt paid by him to Doyle, and the proceeds of the sale be divided between Ross and Wilson, pro rata, in proportion to the amount of their respective debts.

Decree reversed and cause remanded.  