
    Joel Riblet v. John S. Davis et al.
    .1. The stipulation in a mortgage, that it is not to be foreclosed until the property of the makers of the note, which it is given to secure, is exhausted, is complied with, where, after judgment on the note against the maters, it appears they have no property subject to execution. The creditor is not bound to bring suit to exhaust the equities of the judgment debtors, before foreclosing the mortgage.
    2. An execution issued on a judgment by confession, was levied on the goods of one of the judgment debtors, on whose application the judgment was modified and the execution set aside, whereby the goods were lost to the judgment creditor. Held,, that in the absence of fraud or collusion on, the part of the creditor, his right to recover the whole amount of the debt of a co-surety of such judgment debtor was not affected by the discharge of the levy.
    Motion for leave to file petition in error to reverse tlie judgment of the District Court of Crawford county.
    The original action was brought to foreclose a mortgage executed by Joel Riblet to the plaintiffs, Davis et al., to secure the payment of a promissory note made by Jacob Riblet, Joel Riblet, and Samuel Shunk for the sum of $8,702.91, payable one year after date with interest. Shunk and Joel Riblet were, in fact, sureties for Jacob Riblet, and the three gave, in connection with the note, a warrant of attorney authorizing the confession of judgment in case of default of payment.
    In the condition of the mortgage was the following provision : “ And be it further understood that the property of the makers of the note to be exhausted before this mortgage can be foreclosed, and the real estate herein conveyed be sold.”
    The note not being paid at maturity, judgment was taken thereon by confession in the Court of Common Pleas of Lorain county, on the 17th day of October, 1871. On the 19th day of the same month, the sheriff of Crawford county, by virtue of an execution issued on the judgment, levied on a stock of goods, belonging to Shunk, of the value of $4,000. The goods were allowed to remain in the possession of Shunk on his executing to the sheriffj with security, a redelivery bond for the same.
    On the 21st day of October, 1871, the court, on Shunk’s motion, modified the judgment by reducing the amount, set aside the execution, and directed the sheriff of Crawford county to return it, and likewise required the statutory certificate to be made that Jacob Riblet was principal, and that Shunk and Joel Riblet were sureties. On the same day, execution was issued on the modified judgment, directed to the sheriff of Crawford county. This execution came into the hands of the sheriff' on the 23d of the same month, but before it was received and after the first execution was set aside, the goods were removed by Shunk, without the knowledge of the sheriff or of the execution creditors, beyond the reach of the process of the court.
    The sheriff levied the last execution on the mortgaged premises, his return showing, in substance, that he could find no other property of . either of the execution debtors subject to levy.
    On the trial, the court found that, at the commencement of the suit, Shunk had no property subject to execution ; that Jacob Riblet and Joel Riblet had neither of them any personal property subject to levy; that they had lands which were incumbered by judgment and mortgage liens-of a date prior to the judgment of the plaintiffs, but that the amount of such liens at the date of said judgment was not shown ; that, by reason of prior incumbrances, neither of the judgment debtors, at the time of trial, had any property, real or personal, aside from the mortgaged premises, out of which any part of the judgment could be made.
    The court found the amount due the plaintiffs, without charging them with anything on account of the goods lost-by the setting aside of the execution, and ordered, in default of payment, the sale of the mortgaged premises.
    In rendering this judgment, the plaintiff in error alleges-the court erred.
    
      A. K. Dunn, for plaintiffs in error:
    If the stipulation in the mortgage, “ and be it further understood that the property of the makers of the note to be exhausted before this mortgage can be' foreclosed, and the real estate herein'conveyed be sold,” means anything, it is that all the property belonging to the makers of the note and the equities of the makers be exhausted before this mortgage could be foreclosed. If not, tbe mortgage means no more with the stipulation than without it. It was an express agreement which seems to take' this case out of the rule that a creditor is not bound to pursue incumbered property and resort to proceedings in equity to-exhaust the same, before resorting to the property of a surety. That the property of the makers be exhausted first is the letter of the contract, and the surety is entitled to stand upon the letter of his contract.
    Two of the makers had property upon which were some incumbrances, but no steps were taken to exhaust that property. The discharge of the levy on $4,000 worth of Shunk’s goods was a satisfaction of the judgment pro tanto. Cass v. Adams et al., 3 Ohio, 545; Ford v. Commissioners of Geauga County and Skinner, 6 and 7 Ohio, 482; Mayo v. Williams, Adm’r, 17 Ohio, 244, 247. Joel Riblet, the plaintiff in error, stands in the relation of surety to Jacob Riblet and Shunk, so far as the property mortgaged is concerned, and the discharge of the levy on Shunk’s goods released him to the extent of the value of the goods. A creditor, by releasing the property of the principal taken in execution exonerates the surety. Dixon et al. v. Ewing, 14 Ohio, 575; Findlay Ex’rs v. Bank of the United States, 10 Ohio, 59, 64; Ide v. Churchill, 14 Ohio St. 372-386.
    
      H. C. Carhart and Jacob Scroggs, for defendants in error:
    The plaintiffs were not bound to exhaust or resort to the equities of Jacob and Joel Riblet in the real estate incumbered by judgments and mortgage liens prior to the date of the Lorain county judgment. The Commercial Bank of Lake Erie v. The Western Reserve Bank et al., 11 Ohio, 444; 1 Johns. Ch. 409-430; 4 Ib. 130.
    The stipulation in the mortgage is not stronger than the language of the code, sec. 449.
    The District Court, having found that the makers of the note had no other property out' of which the judgment could have been made than that described in the mortgage, would have done a vain thing to have'sent the plaintiffs out of court to commence a new action against the same parties and the same subject-matter. If there was no other property at the time. of the trial, the conditions of the mortgage were broken, and the decree of the District Court was. correct.
    The discharge of the levy on Shunk’s goods did..not entitle Joel Riblet to any credit on said note, even if the court had found the value of the stock, because the plaintiffs below never received any benefit from said stock of goods. Nor was any lien upon said stock, which they may at one time have had, lost by any laches of théirs.
   ■White, J.

Two grounds of error are relied on in this case:

That the stipulation in the mortgage requiring the property of the makers of the note to be exhausted before resorting to the mortgage, had not been complied with.

That the court ought to have required the plaintiffs to account for the goods lost by the setting aside of the first execution.

Neither of these positions is well taken.

In the absence of a stipulation to the effect of the one in question, the plaintiffs, without taking judgment on the note, could have resorted directly to the mortgage for payment. The effect of giving the mortgage without such stipulation, therefore, would have been to subject the mortgagor to the additional risk of his being required, in the-first instaneé, to pay the whole debt; and, thus, to deprive-him of the benefits resulting from a judgment and execution against all the makers of the note.

The object of the stipulation in the mortgage was to protect the mortgagor from the consequences of othis risk.

As a general rule, the property of a debtor is regarded as exhausted when-he has nothing that can be reached by execution. In this sense, we think, the terms were used by the parties in the present instance.

It appears that judgment was taken on the note against the makers, and that they had no property subject to execution. This was a compliance with the stipulation in question. The plaintiff's, therefore, were under no obligation to bring suit to exhaust the equities of the judgment debtors before resorting to the mortgage.

The loss of the goods resulting from the setting aside of the first execution, is not chargeable to the plaintiffs. The execution was set aside and recalled, and the judgment modified, by order of the court, on the application of one of the j udgment debtors. There was no fraud or collusion on the part of the judgment creditors in procuring the discharge of the levy, nor did they consent thereto. This case, therefore, does not belong to the class of case's referred to in argument, where a levy has been released or lost by the act of the creditor to the detriment of a surety:

It is claimed that the levy was preserved under section 538 of the code, which provides, that, “ when a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.”

This section only applies to judgments modified at a term subsequent to that at which they were rendered. In the present case, the judgment and the modification, and the setting aside of the execution, were at the same term. But if the section were applicable, it would not preserve the lien acquired by a levy, after the execution under which it was made, had been unconditionally set aside.

Leave refused.

Day, C. J., McIlvaine, Welch, and Stone, JJ., concurring.  