
    Thomas Bibb et al vs. John Martin et al.
    While the circuit courts have jurisdiction on their equity side to foreclose mortgages without regard to amount; and, in the exercise of that jurisdiction, may draw to themselves incidental inquiries auxiliary to the exercise of the power; yet it seems doubtful whether those courts would have jurisdiction of a bill in which it would be necessary to settle the conflict between judgment creditors and those who claim under the mortgage, before the mortgage could be enforced.
    While the creditor has the right to be substituted to the place of the surety in a case where the principal has given the surety indemnity, yet the right of the creditor in the subrogation must be measured by the right of the surety; and that right must be tried by the instrument which creates it.
    On a bill therefore, filed by a creditor, which sought to subject to his debt property mortgaged by a principal to his surety, to indemnify him against certain bonds supposed to have been entered into jointly with the principal, one of which was alleged to be an injunction bond against the prosecution of the creditor’s demand ; the condition of the mortgage being that the principal should well and truly pay the bonds recited, in case by law he should be required to pay them, and should save the sureties harmless by reason of the bonds : it was held, that the‘bill was properly dismissed, on proof that, in point of fact, the mortgagor had never signed the injunction bond in the case of the creditor seeking the foreclosure ; and had therefore never been required to pay it, nor had the sureties suffered damage by reason of it.
    And even if the principal had signed the injunction bond, it would have been premature in the creditor to ‘have filed the bill to subject the property to his debt, until there had been a suit at law upon the bond, and the extent of the damage suffered by the surety thus ascertained.
    On appeal from the circuit court of Hinds county; Hon. George Coalter, judge.
    The facts, as they are disclosed by the pleadings and proof, are in substance as follow, viz.:
    On the 12th December, 1842, judgment was recovered in favor of Martin, Pleasants & Co., which was afterwards assigned to Thomas Bibb and Arthur M, Hopkins, on a promissory note made by Elias Vickers, John McKnight, and J. Vickers; upon which execution was issued and returned “no property found.” Whilst the action at law was pending .on said note, John McKnight, one of the makers, exhibited his bill of complaint in the superior court of chancery; enjoining all farther proceedings at law, upon the alleged ground, that there was an unsettled copartnership account subsisting between himself and Win. O. Chilton, the original holder of the note, on which there was a large sum due to McKnight, and which he prayed might be ascertained by account and allowed as a payment on said note. Elias Vickers was no party to this bill. McKnight executed an injunction bond with Hartzogg and Slater, his sureties, on the 24th March, 1840.
    Pending that cause, to wit, 13th April, 1842, a rule was taken against McKnight (complainant) to give security for costs within sixty days.
    On the 10th of December, 1842, the injunction was dissolved under a rule against the complainant for better security on the injunction bond.
    On the 24th of March, 1840, Elias Vickers, who was one of the makers of the note, above alluded to, executed a mortgage to Francis H. Hartzogg and Charles Slater, conveying to them certain slaves, to indemnify them against certain liabilities then incurred by them, or expected to be incurred by them as sureties for him, upon certain bonds described in said mortgage.
    The slaves mentioned in the mortgage were removed to Louisiana, some time in 1841, where Elias Vickers, the mortgagor, likewise removed. Some time afterwards, two or three of those slaves returned to Mississippi, and were levied on by the sheriff of Hinds county by virtue of executions in favor of S. Granberry and of Jennings & Drone, as the property of Elias Vickers. Charles Slater claimed them as his, and an issue to try the right was made up and tried in the circuit court of Hinds county, which resulted in a verdict for the plaintiffs in execution.
    Bibb and Hopkins, claiming to be assignees of the judgment first mentioned, then filed this Hill, praying an injunction against the sale of these slaves under execution, praying also to be substituted to the alleged rights of Hartzogg and Slater under the mortgage, and for a forecl&gure and sale of the slaves under decree of the court.
    That provision in the moFtgage, which, it was contended, was designed to indemnify Hartzogg and Slater, was as follows, viz.:
    “ And whereas, also,- the said Hartzogg and Slater are both bound in an injunction bond, in a suit in chancery brought by Vickers and McKnight against Wm. O. Chilton, or Martin Pleasants <fc Co., or all of them, which bond is for about the sum of six thousand dollars.”
    The condition of the mortgage is as follows :
    “Now if the said Vickers shall well and truly satisfy and discharge said bonds above recited, in case by the law he shall be required to pay them, and if he shall at all events save entirely harmless and free from all costs and damages and loss, on account of said above recited bonds, the above said Hartzogg and Slater, then this obligation to be utterly void, otherwise to remain in full force and virtue.”
    The injunction bond, referred to, was made by John McKnight, (principal,) and by Hartzogg and Slater, (sureties,) in the penalty of $0900.
    The condition is as follows, viz.:
    “Now if in the event of the dissolution of said injunction, the said McKnight shall well and truly pay and satisfy all damages the above obligees may sustain, for and in consequence of the wrongful suing out said injunction, or otherwise perform and satisfy what may be the decree of the said superior court in the premises, then this obligation to be void,” &c.
    It is not deemed requisite to notice the pleadings at greater length.
    Upon final hearing, a decree dismissing the bill was made, and an appeal by Bibb and Hopkins prosecuted.
    
      A. L. Dabney, for appellants,
    Insisted that the complainants, as equitable assignees of the original creditor of Elias Vickers, make out their title to any equity which Stater and Hartzogg had, by substitution. The mortgage was made to indemnify these persons against their suretyship for Vickers in the injunction bond, and the sureties not having paid the debt, the complainants claim to subject the property mortgaged for their indemnity, to its payment. He cited 2 Tucker, Comm. 492, and reviewed the facts of the case.
    Potter, on same side.
    
      
      E. W. F. Sloan, for appellees,
    Contended, that before the rule relied on by appellants could apply, it must be made affirmatively to appear,
    1. That Hartzogg and Slater were sureties for Elias Tickers, as a principal obligor (either alone or jointly with John McKnight) on an injunction bond.
    2. That Vickers executed a mortgage to indemnify them as such his sureties.
    3. That Vickers has rendered himself and said sureties liable in damages for a breach of the condition.
    Neither of these suppositions, however, is true in point of fact.
    The injunction bond, exhibited in this case, was not made by Vickers. Neither his name nor his seal is to be found upon it; nor was he a party to the bill on which the injunction was granted, either as co-complainant or otherwise.
    If Hartzogg and Slater were compelled to pay any damages, which might have resulted from a breach of the condition of said bond, they could enforce contribution from John McKnight only, who is the principal obligor; but it will not be contended that they could, in such case, enforce contribution from Vickers, who is not a party to the bond.
    The right of substitution by a creditor, is limited to such securities as may be taken by the sureties from the principal obligor; for or against volunteers there is no such right. And as the relationship of principal and sureties does not subsist between the grantor in the mortgage, (Vickers,) and the grantees, (Hartzogg and Slater,) it seems to follow, necessarily, that they hold no right, against Elias Vickers, to which the appellants can be substituted. Sanford v. McLean, 3 Paige, Ch. Rep. 117.
    Obligors on the bond cannot be held liable on it.
    It provides that McKnight shall be discharged upon the performance of either, of two conditions.
    1. That he pay all costs and damages the obligees may sustain in consequence of the wrongful suing out of said injunction; or,
    2. That he perform the decree of the superior court of chancery in the premises.
    Neither of these conditions has been broken.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the circuit court of Hinds county by the appellants, having various objects in view. It first prays to enjoin the sale under execution of Jennings & Drone of several slaves seized as the property of Elias Tickers. Next it prays that the complainants may be subrogated to the rights of the deféndants, Slater and Hartzogg, to whom the same slaves were conveyed by deed of mortgage by Elias Tickers, to secure them against certain liabilities as sureties, and as the bill alleges, against liability as sureties in an injunction bond for the debt which they are seeking to enforce, and lastly for the foreclosure of the mortgage, for their benefit.

There was a demurrer filed at one time, to the jurisdiction of the court, which appears to have been afterwards withdrawn. If, however, the court had not by the constitution jurisdiction of the subject-matter, neither the withdrawal of the demurrer, nor the express consent of the parties could confer it. That instrument gives the jurisdiction to the circuit courts, on the equity side, to foreclose mortgages, but in no other equity causes where more than five hundred dollars are in controversy. When the foreclosure of the mortgage is the chief object of the bill, it might draw to it certain incidental inquiries auxiliary to the exercise of the power. But here is a controversy between judgment creditors, and those who claim under the mortgage. The right of priority between them is first to be settled. Next the right of subrogation, which is denied, and after all this comes the question of foreclosure of the mortgage. To say the least, this is carrying the jurisdiction to a very questionable extent: but we reserve any authoritative opinion, until another occasion.

The bill was dismissed in the court below, and we think correctly. The doctrine of subrogation rests on very obvious principles of equity, and as applicable to the case before us, is thus stated by a writer of great accuracy: “If either the creditor, or the surety at the time he becomes bound, or at any time before or after, takes a lien on real or personal property, the other party is entitled to the benefit of it; so that if the surety fail, the creditor may enforce the lien the surety may have taken. In short, either is entitled to stand in the shoes of the other, in regard to all remedies.” 2 Tucker, Comm. 492. It will thus be seen, that whilst the creditor has the right to be substituted to the place of the surety, this substitution or subro-gation can give him no higher right. The right of the surety must be tried by the instrument which creates it. Before we proceed to consider the mortgage, it will be well to state, that Vickers, the mortgagor, never joined in the injunction bond, on which this bill is founded. The mortgage was given to guard against several liabilities. The condition is as follows: “Now if the said Vickers shall well and truly satisfy and discharge said bonds above recited, in case by the law he shall be required to pay them, and if he shall at all events save entirely harmless and free from all costs and damages and loss, on account of said above recited bonds, the said Hartzogg and Slater, then this obligation to be utterly void.” The bonds referred to were several bonds for writs of supersedeas, and the injunction bond, the origin of this controversy.

It is very manifest, that the right of Hartzogg and Slater to enforce the mortgage, depends on a breach of the condition, and the fact that Vickers should be required by law to pay the bond. So far from been required by law to pay it, he never executed it, and is no party to it. It would seem to have been the intention that he should execute it, but in point of fact he never did, and this court cannot impose a burthen on him, which he did not undertake. It is impossible, therefore, so far as-any thing has been made to appear to us, that he should ever be required by law to pay it.

In regard to the other portion of the condition, to save them harmless from all costs, damages, and loss, on account of said bonds, the same remark is in all its force applicable. Moreover, in any possible event, the extent of the “cost, damages, and loss,” would have to be ascertained by suit on the bond, unless the sureties find the decree on dissolution of the injunction. This they did not do. The bill states that an action had been brought at law, on the injunction bond, which was then stilll pending; and the answer of Hartzogg states, that as to him the action had been dismissed, upon his craving oyer of its condition. On this aspect of the case, this bill was premature, except for the mere purpose of prohibiting the sale of the negroes by Jennings & Drone during the litigation, because it was not ascertained in the only legal mode — a suit on the bond — what was the extent of loss or damage sustained by Hortzogg and Slater, and the consequent extent of their right to indemnity. That right must limit the right of the complainants.

The first ground, however, is entirely conclusive of the rights of the parties. As no recovery could be had against Tickers on the bond, because he was no party to it, the mortgage as to that liability gave no right of indemnity to the sureties. The complainants can occupy no higher ground than the sureties. The mortgage was not a security for the debt, or for the original note the evidence of the debt. To give it that extent, would go beyond the intention and the undertaking of the mortgagor.

The decree dismissing the bill is affirmed.  