
    Lewisburg.
    Vance v. Monroe.
    1847. July Term.
    (Absent Brooke, J.)
    
      M sells S a tract of land, for the purchase money of which he takes three bonds payable in one, two and three years, and he takes a deed of trust on the land to secure the same. When the first bond becomes due he sues thereon and obtains a judgment, on which execution is ■ issued and levied on the property of S, who obtains an injunction thereto, which is afterwards dissolved. M then brings an action on the injunction bond against $ and his surety V; and pending the suit the land is sold under the deed of trust, and purchased at a price not quite sufficient to discharge the two last bonds for the purchase money, which were then due. After the sale the defendants to the suit on the injunction bond insist that the proceeds of the sale of the land should be first applied to satisfy the judgment obtained on the first bond. Held : The proceeds of the sale are to be applied to the discharge of the two last bonds, leaving the judgment on the first bond in full force.
    In the spring of 1839, Ferdinand Stone purchased of Jesse Monroe a tract of land in the county of Hampshire, at the price of 1875 dollars; and he executed to Monroe his three bonds, each for the sum of 625 dollars, dated the 2d of May 1839, and payable one the 1st of October 1839, one the 1st of October 1840, and the other the 1st of October 1841, and all bearing interest from their date.
    To secure the purchase money Stone conveyed the land to a trustee; and the deed provided that the trust should not be enforced until twelve months after the last bond became due.
    When the first bond fell due Monroe brought suit upon it, and obtained a judgment thereon against Stone, and an execution having been issued upon this judgment, it was levied upon his personal property, and he gave a forthcoming bond with John Vance as his surety. Before the bond was forfeited Stone obtained an injunction to the judgment, which was afterwards dissolved. Vance was also the surety in the injunction bond.
    After the dissolution of the injunction Monroe instituted an action on the injunction bond against Stone and Vance; and pending the suit, the time having arrived when the trust might be executed, the trustee proceeded by the direction of Monroe, to sell the land, and Monroe became the purchaser thereof; and the purchase money, after deducting all expenses of executing the trust, amounted to 1526 dollars 74 cents: not quite sufficient to discharge the two last bonds. Tins was not paid by Monroe to the trustee ; but he executed to the trustee a receipt for said sum of money as so much received on account of the debt secured by the deed of trust, and to be applied thereto according to law.
    After the sale the defendants were permitted to file a plea puis darrein continuance; and they filed a plea in which they insisted that the proceeds of the sale under the deed of trust should be first applied to the satisfaction of the judgment which had been obtained on the bond first due. The plaintiff took issue upon the plea, and the parties agreed a case stating the foregoing facts, which was to be in lieu of a special verdict. Upon this case agreed the Court gave a judgment for the plaintiff, for the amount of the judgment which had been enjoined, with interest, damages and costs; and the defendant Vance thereupon applied to this Court for a supersedeas to the judgment, which was granted.
    Cooke, for the appellant,
    after referring to the fact that neither the debtor or creditor had directed the application of the proceeds of the trust sale to either of the bonds, stated the rule of law to be, that a debtor making a payment may direct its application. If he does not make the application the creditor may do it. If neither does, the Court will apply it according to the equity and justice of the particular case. And for this he cited Smith v. Loyd, 11 Leigh 512.
    He insisted that in this case the equities of Vance the surety, and Monroe the creditor, were equal; and that therefore upon the principle that equality is equity, the fund produced by the land should have been equally apportioned. He referred to Perris v. Roberts, 1 Vern. R. 34, and Backhouse v. Patton & als. 5 Peters’ R. 159.
    
      Kerchival and Patton, for the appellee,
    insisted that the debt due from Stone to Monroe was one debt, though three bonds were given for it. That when the first bond became due Monroe had obtained a judgment thereon, and had enlarged his security by the levy upon the debtor’s personal property; and certainly Slone would not be heard to insist that his creditor should be deprived of a security which he had obtained, by applying the proceeds of the land to the discharge of the judgment, and thus release his personal property.
    They insisted further, that if Stone could not insist upon this, Vance could not do it. He had voluntarily substituted himself for the property levied on, and had thus withdrawn it from the lien of the plaintiff’s execution : he therefore stood in its place and could have no equity to be released.
   By the Court.

The judgment is affirmed.  