
    Markham et al. Appellants, v. Calvit’s Executors, et al.
    
    Where a judgment was against two partners jointly, the chancellor refused to marshall the securities by decreeing that the partners should each satisfy one-half of the judgment ; inasmuch as such a decree would render a joint judgment several in its character, and delay the judgment creditor..
    APPEAL from the Chancery Court.
    This was an appeal from an interlocutory order of the superior court of chancery, dissolving an injunction which had been granted in favor of the appellants. The bill stated that a decree had been obtained in the chancery court in favor of Mrs. Calvit against William F. Markham, Peter C. Goosey, and Christopher H. Dart, for the sum of ten thousand eight hundred and six dollars, sixty-eight cents. From this decree an appeal was taken to this court, and Thomas M. Green became bound as surety in the appeal bond. The decree was affirmed March, 1839. An execution issued, and was levied upon certain property which had been conveyed by deeds of ^trust from William F. Markham to B. M. Markham, as trustee, for purposes therein mentioned, and was also levied on certain slaves the property of Thomas M. Green, the surety in the appeal bond. An execution was also sent to Yazoo county, and levied on the property of Peter C. Goosey, the sale of which was enjoined by the Planters’ Bank, which claimed the property in virtue of a mortgage from Goosey.
    The decree was rendered against William F. Markham, Goo-sey. & Dart, as partners, and the conveyances to B. M. Markham by the deeds of trust, from William F. Markham, and from Peter C. Goosey, to the Planters’ Bank, were both made after the rendition of the decree. The bill prayed an injunction to restrain the sale of the property included in the deeds of trust to B. M. Markham, and also that of Thomas M. Green, who alledged that he was a mere surety, and as such .not liable until the property of the principals was entirely exhausted. The bill also prayed the decision of the chancellor, whether the execution should not be levied so as to raise the money equally out of the estates of Goosey & Markham, the decree being for a partnership debt, and so liable for contribution. Bill alledged that Dart is insolvent, and was at the time of the rendition of the decree. The property of Markham and Goosey was more than sufficient to satisfy the decree.
    The chancellor dissolved the injunction generally.
    G. S. Yerger, for appellants.
    1. Suppose a decree is a lien from the time it is rendered in the chancery court, will a court of equity, at the instance of a purchaser of part of the property bound, marshall the securities, or assets bound? and,
    2. If it will, will it by injunction prevent the creditor from making his whole demand out of the fund conveyed to the purchaser, when he cannot resort to another fund which is equally liable ?
    Bernard M. Markham took his assignment of the property after the decree. If there is other property bound by the decree, as well as that conveyed to B. M. Markham, equity will compel the judgment creditor to satisfy the judgment out of that which is not assigned.
    The principle is thus stated by Judge Story: “ If one party has a lien on, or interest in two funds, and another party has a lien or interest in one of the funds only, the latter has a right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if this course is necessary for the satisfaction of the claims of both parties.” I Story, 588, 589 ; 4 John. Ch. Rep. 17; Wright’s Rep. 261; 6 Ham. Rep. 233.
    In this case, the decree against Markham & Goosey binds the property of both.- They each are bound for the whole debt, to the creditor; but as between themselves, each must pay one half; neither of them has any equity to compel the creditor to levy one half on the property of each. But if one assigns subsequently part of his property to a third person, and that property is levied on to pay the whole, then such person has a right in equity to say, “ I anr interested only in one fund, to wit, that assigned me. You are interested in both funds, to wit, that of Markham and that of Goosey. Now if Goosey is liable to pay the whole debt in the first instance, and his property is sufficient, I will compel you to take satisfaction out of that. And if Goosey is liable to pay one half, I will compel you to satisfy one half out of his property, because this will not injure you ; but if you proceed against the property assigned me, and sell it for the whole, I lose all, because I have no right to any of Goosey’s property.”
    It is true, if there is a joint judgment against two, that, without more, will not be sufficient to compel you to proceed against the property of one, for it may be he is only a security; or the whole, or even a part of the debt may in equity be chargeable on the other party. Hence, in Dorr v. Shaw, 4 John. Ch. 17, cited 1 Story, 589, Chanceller Kent says, “We have no means of knowing whether A. or B. ought to pay the whole of the debt, and it might be unjust, (they not being in court,) to charge the debt upon one instead of the other.”
    So in the case cited by Chancellor. Kent, from 17 Vesey, the lord chancellor said, “the fact of there being a joint judgment against A. & B. merely without more, would not authorize the interposition of the court.” “It must,” says the chancellor, “be first established that it is just and equitable that A. ought to pay in the first instance.”
    In both these instances, the attempt was to throw the payment of the whole judgment on one, without showing that he was liable in the first instance, as between themselves, to pay it. But it is admitted in both cases if he had been first liable, equity would interpose. A fortiori, if it is shown he is liable in the first instance for one half or one fourth, equity will interfere to that amount.
    In this case, Markham & Goosey are both parties, and it is averred in the bill that he is liable to pay one half; so that it falls within the principle of ail the cases, because they are parties, and because as to half he is first liable.
    It is true that this proceeding may delay the plaintiff for some time. So it does in all the cases cited by Story; but the fund is bound by the judgment, and it is better (for such is the principle) that the plaintiff should be delayed, than the rights of third persons be absolutely destroyed. 18 Wend. 595,
   Mr. Justice Thotteb.

stated the case, and delivered the opinion of the court.

The object of the bill is to compel Mrs. Calvit to levy her debt equally on the property of Wm. F. Markham and Peter C. Goosey, the two original and principal debtors, by which means the rights of the other creditors of Wm. F. Markham may have the benefit of their security under the trust deeds. And the power of the court to make this order is urged upon the doctrine which prevails in equity, that if a party has a lien on or interest in two funds for a debt, and another party has a lien on, or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund, in the .first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both parties. That this is the rule in equity there can be no doubt, and it is so laid down in express terms by Judge Story in his Commentaries on Equity, vol. 1, p. 588, and in the case of Dorr v. Shaw, 4 J. Ch. Rep. 17. This is consistent with the claims of justice, and secures both parties. Thus if there are two judgment creditors, and one has a right to go upon two funds? and' the other only upon one of them, the former may be compelled ■to apply first to the fund which cannot be reached by the latter.

This being an undoubted rule, the only question for the consideration of the court is, whether the case before us comes under its operation. The rule has been held to apply only to parties who in seeking this aid, are creditors of the same common debtor; for if they are not, they are not entitled to have the funds mar-shalled, in order to leave a larger dividend out of one of the funds, who can claim only against that. 1 Story’s Eq. 595. Thus if a joint creditor obtains a judgment against joint debtors, and a several creditor obtains a subsequent judgment against his own several debtor, a court of equity will not compel the joint creditor to resort to the funds of one of the joint debtors, so as to leave the second judgment in full force against the funds of the other several debtor. At least it will not do so unless it should appear that the debt though joint in form, ought to be paid by one of the debtors only. Ibid. Thus in the case Ex parte Kendall, 17 Vesey, 520, there was a partnership of five persons, one of whom died, and the other four partners continued the partnership, and afterwards became bankrupt. The creditors of the four surviving partners sought to have the debts of the five paid out of the assets of the deceased partner, so that the dividend of the estate of the four bankrupts might be thereby increased in favor of their exclusive creditors, without showing that the assets of the deceased partner, ought, as between the partners, to pay those debts. The court refused the relief. This case goes upon the principle that the joint creditor, is not compellable to yield up his remedy against either of his debtors, since he has a right to stand upon the letter and spirit of his contract. In such case each debtor is equally bound for the debt, in equity and justice, and hence a court of equity can upon no principle change the responsibility from both to one. This case is in principle the case at bar. For surely if the responsibility cannot be changed as to the whole, it cannot as to part. And if the court was to undertake to compel a rateable contribution, by each joint debtor, by suspending the execution, it would be in effect to convert the decree which is joint, into one which is several.

In this case it is not shown that as between Wm. F. Markham and Peter C. Goosey, the former has any right to insist that Goosey ought to pay in the first instance, as would be the case if he were a surety merely. Nor is it shown that Markham can, for his own sake, compel Mrs. Calvit to seek payment from Goosey. For it appears to be well settled that the creditors who seek this aid of a court of equity, can only claim it through the equity of the debtor or partner, under whom their title is derived. 1 Story’s Eq. 598. But it cannot for a moment be supposed that Wm. F. Markham, one of the partners, could be heard in a court of equity to claim contribution of Goosey in the. manner of the present bill. That is a question to be adjusted as one entirely between themselves, and with which Mrs. Calvit has no concern, nor can she in any case be made a party to a proceeding to try it. How far as between themselves one may be liable to the other for contribution is a question which will have to be decided after a full and final adjustment of the partnership accounts. If this cannot be effected by a voluntary agreement, it may have to be done by a proceeding in chancery. For this purpose a protracted course of litigation may be necessary. But is Mrs. Calvit to be tied up and denied her acknowledged claims upon them during all this while? Surely it cannot be maintained that this can be done. The doctrine upon which assets or securities are mar-shalled, is in utter hostility to such an application of the rule. The purpose of the rule is to do justice to all persons who have an interest in the different funds or securities, and to prevent one who has a lien on two of the funds, from using his power as an instrument of caprice, injustice or imposition. 1 Story’s Equity, 528, It is never applied except where it can be done without injustice to the other creditor or party in interest. Ib.

' We therefore feel satisfied with the decree of the Chancellor, and must order the same to be affirmed.  