
    *Miller and Miller v. Pendleton et al.
    Spring: Vacation,
    1809.
    Sureties — Payment by — Subrogation.—Securities who have a lien on the property of their principal by mortgage, but which was defective, it being proved by two witnesses only, were allowed to stand in the place of the creditor, as to the assets of the principal.
    The plaintiffs were bail for one Timber-lake ads. Gray, who obtained judgments at law against them; and Timberlake, to indemnify the plaintiffs, mortgaged several negroes; but the deed was admitted to record in Caroline County Court, upon the proof of two witnesses only. Timberlake then died intestate, and administration of his estate was committed to the Sheriff of the said county, who sold the same, including the mortgaged negroes; and to prevent a distribution of these proceeds, the present bill was filed, and an injunction awarded.
    The answer denied notice of the mortgage, and a motion was now made to dissolve; and, by consent, the cause was finally heard.
    
      
      See monographic note on “Subrogation” appended to Janney v. Stephens, 2 Pat. & H. 11.
    
   By the Chancellor.

The plaintiffs are entitled to no preferences among the creditors of the intestate, as the deed was not recorded in the manner prescribed by law; but as the plaintiffs have paid, or are bound to pay, Gray’s judgment, they must be allowed to stand in Gray’s place, and take that proportion of the assets to which he would be entitled, if he was now a creditor of the intestate; and so it was decreed accordingly._  