
    Stockard vs. Stockard’s adm’r.
    
    The maker of a note sold estate to the third endorser, under an agreement, that the purchase money should be appropriated to the discharge of the note, and to save harmless the second endorser: It is held, that the third endorser was a trustee for the second, and that the assent of the second endorser to the trust would be presumed, and that the trust could not be afterwards defeated by arrangement between the maker and third endorser.
    This bill was filed by John Stockard against Granberry, administrator of Samuel Stockard, deceased, in the Chancery Court at Columbia.
    W. Craig made a note payable at the State Bank at Columbia, on which John Stockard was the second endorser, and Samuel Stockard the third and last endorser. They were accommodation endorsers. Before the note fell due, Craig sold his wife’s dower in a tract of land to Samuel Stockard, and Stockard agreed to pay the note in bank in part consideration thereof.
    Judgment was obtained on the note against W. Craig and Johnson Craig, who were insolvent, and against the second and third endorsers. John Stockard paid the note. Samuel Stock-ard died, and this bill was filed against his administrator, Granberry, to compel him to refund to him the money which he had paid on the note. The bill charged, that the dower interest of Craig and wife was sold expressly for the satisfaction of this note, and to relieve the endorsers, John and Samuel Stockard, and that Samuel Stockard held in trust the fund to pay the same and refused to pay it, and prays'that he be compelled to pay the money to John Stockard:
    It appears that Craig fell in debt to Samuel Stockard after-wards, and that the sum for which the dower interest had sold was settled in discharge of a debt due to Samuel Stockard.
    The case was heard on bill, answér, replication and proof, when the following decree was entered by order of the presiding Chancellor, Cahal.
    “This cause came on for final hearing on this 26th of March, 1846, before the Hon. Terry H. Cahal, Chancellor, See., upon the bill, answer, replication and proof in the cause. And it appearing to the court that the dower interest of William Craig and wife, Lotty Craig, in the land mentioned in the pleadings, was sold and conveyed by said Craig and wife to said Stock-ard, for the benefit of said Johnson, and that the title to said dower interest was made to said Johnson.
    It further appeared that it was agreed between said Craig and said Stockard, that said Stockard should pay said note mentioned, as drawn by said Craig, and endorsed by said complainant and said Stockard as the consideration of said dower.
    But it appears that complainant was no party to said agreement, and that said Craig and Stockard had a right to rescind said contract without the consent of complainant.
    And it appears to the court, that on the-day-1843, said Stockard paid said Craig the sum of $200, the full consideration of said dower interest, and that said agreement was then rescinded. And it appears that there was no trust fund in the hands of said Stockard, nor is there in the hands of the defendant, Granberry, as his administrator, any trust fund which is subject to the payment of said note, or to reimburse complainant for the payment of said note.
    It is, therefore, ordered, adjudged and decreed by the court, that complainant’s bill be dismissed, and that complainant pay the costs of this suit.”
    From this decree the complainant appealed.
    M. S. Frierson, for complainant.
    1st. If this fund was placed in the hands of the defendant’s intestate, for his individual indemnity, perhaps complainant is not entitled to the fund, to indemnify him for what he has been compelled to pay, which payment discharged the defendant’s intestate from liability. 1 Dev. Eq. 221; 7 Conn. 485.
    2nd. But if this fund was placed in his hands for indemnity, or as a security for the payment of the note, upon which complainant was bound, complainant having paid the same, is entitled to be indemnified out of the fund. 1 Dev. Eq. 221; 7' Conn. 478; 11 Conn. 112; 15 Conn. 381.
    3rd. An assignment made directly to a creditor, must be assented to, before it is irrevocable. 2 Kent, 533; 4 Ang. on Assignments, 168, 170.
    
      4tb. But if made to a trustee, "who accepts the trust, the assent of the creditor or security is presumed. 3 Yerg. 262, 266; 2 Story’s Eq. sec. 1196; Ang. on Ass. 168, 170.
    5th. After an assignment is assented to, by the creditor or security, it is irrevocable. 3 Yerg. 267, 270; 10 Yerg. 146, 15S; Ang. on Ass, 17, 35, 168, 173; 2 Story’s Eq. sec. 1045 to 1047.
    6th. An assignment can only be revoked by the grantors, the husband and wife, in this case. 10 Yerg. 158.
    
      Houston, for the defendant.
    1st. The transaction shows a simple promise on the part of Samuel Stockard, upon a sufficient consideration, to pay the Craig note upon which complainant was endorser, and a failure of Samuel Stockard to pay the note, and then a payment of the note by complainant. And this being so, there is no trust fund in defendant’s hands to be reached by suit in equity, and it is not such a case as will give the Chancery Court jurisdiction. The remedy at law is plain, adequate and unembarrassed, if complainant was a party to the proceedings in a way to entitle him to sue defendant in any court.
    2d. But complainant was no party to the transactions, and Craig and Samuel Stockard had a right to rescind their contract as to the appropriation of the $200, and this it appears was done. It shows that Samuel Stockard paid the $200 for the dower to Craig in a different way from that first contemplated, and that the first contract was so far rescinded, and before this bill was filed. This is certainly so from the proof, and as complainant was the first endorser and Samuel Stock-ard the second, the former was bound to pay the note before Samuel Stockard could be called upon at all, and as complainant paid it, he must look alone to the parties who were before him on the note. The contract between Craig and Stockard being rescinded before this bill was filed, the case is presented as though no contract had ever been made, and the liabilities of the parties remain as fixed by law at the time the note was drawn and endorsed.
   Green, J.

delivered the opinion of the court.

This bill is brought to hold the defendant’s intestate liable for a fund which was placed in his hands to pay a note on which the complainant was an accommodation endorser. The only question is, whether a trust was thereby created, for the benefit of, and to save harmless the complainant. It appears from the record, that W. Craig was the drawer of the note, payable in the Branch Bank of Tennessee, at Columbia, and Johnson Craig, the complainant and the defendant’s intestate, were accommodation endorsers.

W. Craig, the maker, had married the widow of Alexander Johnson, who had died seized and possessed of a seventy acre tract of land in Maury county, of which his widow, the present wife of Craig, was endowed one-third. To create a fund for the payment of the note aforesaid, Craig and wife, sold her dower in the land to Samuel Stockard, the defendant’s intestate, for two hundred dollars, part of which sum was to be paid in liquidation of the note aforesaid.

Subsequently, Craig became indebted to Samuel Stockard, and, in a settlement of their accounts, it was agreed that Craig should be credited on Stockard’s account, with the two hundred dollars, which was done.

The note has been protested, and John Stockard, the complainant, has been compelled to pay the amount, about $132.

The question now is, whether Samuel Stockard held this fund in trust for the security of himself and the other endorsers. And, we think he did.

Craig proves, that he sold the land for the purpose of paying the note, and releasing his father and John Stockard as his securities; that this was the sole object in selling the land, and the condition upon which the contractwas made. In this statement Craig is corroborated by his wife, who says, she released her dower on condition, that the fund should be held for the security of the endorsers on said note. Martin L. Stockard, a brother of the complainant and the defendant’s intestate, says, he heard Samuel Stockard say, the principal object he had in buying the land, was to release his brother John Stockard, who was endorser for William Craig in bank.

These depositions fully prove, that this fund was placed in the hands of Samuel Stockard, in trust, for the indemnity of the endorsers on Craig’s note.

In Story’s Equity Jurisprudence, sec. 1197, it is said, “The most simple form, perhaps, in which such an implied trust can be presented, is that of money, or other property, delivered by one person to another, to be by the latter paid, or delivered over and for the benefit of a third person. In such case, the party so receiving the money, or other property, holds it upon a trust; a trust necessarily implied from the nature of the transaction, in favor of such beneficiary, although no express agreement has been entered into, to that effect.”

And in 2d Kent’s Com. 533-4, it is said, “The legal estate passes and vests in the trustees; and a court of equity will compel the execution of the trust for the benefit of the creditors, though they be not, at the time, assenting, and parties to the conveyance. The assent of absent persons to an assignment will be presumed, unless their dissent be expressed, if it be made for a valuable consideration, and be beneficial to them.”

We think, upon these facts and authorities, that when Craig placed this fund in the hands of Samuel Stockard to indemnify the complainant as his endorser, the law implied a trust for the benefit of the complainant, which equity will enforce. 2 Story’s Eq. Juris, p. 1196; 2 Kent’s Com. 532. And that the assent of the complainant must be presumed, it being for his benefit, and for a valuable consideration. 3 Yerg. R. 262; Angel on Assig. 17, 35, 168, 173. 2 Story’s Eq. sec. 1045, 1047.

Nor can it be revoked after the trustee has taken upon himself the trust, unless the beneficiary dissents therefrom.

The decree must be reversed, and the estate of Sam. Stock-ard will be charged with the sum paid by the complainant on this note, and interest thereon.  