A. and B., having indorsed sundry promissory notes for C., and the latter having given them a mortgage for their indemnity, the notes were afterwards paid by A. and C., who thereupon released all his right in the mortgaged premises to A. It was holden, that B. had no interest in the land, after the mortgage and before the release, which was subject to attachment by his creditors.
Summary
This was a petition for partition, which was referred to the detei mination of the Court on a statement of facts agreed by the parties, to the following effect.
The title to the premises, whereof the petitioners claimed one moiety, and prayed that the same might be set off to them, was formerly in one Daniel Tucker.' The respondent and one Jonathan Tucker, having indorsed sundry promissory notes of the said Daniel, amounting to $ 7756.18, which were negotiated to certain creditors of the said Daniel, for his prope°r debt, he conveyed the premises to them, the said Joel and Jonathan, in mortgage, to indemnify them against their liability on the said notes. The said Daniel afterwards paid a part of the sum due on the said notes ; the remainder thereof being paid by the said Joel alone, to whom the said Daniel released all the right to the same premises which remained in him.
The petitioners, having, after the execution of the said release, recovered a judgment against the said Jonathan, within thirty days thereafter levied their execution upon a moiety of the premises, which had been attached by them in the same suit, after the said payments, and before the said release.
A nonsuit or default ivas to be entered, as the opinion of the Court should be upon these facts.
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Opinion of the Court
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Curia.
The deed from Daniel Tucker to Jonathan Tucker and Joel Hall conveyed no estate to them which could be subject to attachment by their creditors ; for it conveyed no present estate, but operated merely as a pledge to secure them against a future contingency. Jonathan Tucker was never damnified by the liability he assumed for Daniel; and he cannot be damnified in future, the debt being paid. Had the attachment of the petitioners ever been valid, it would have ceased to hold the estate when the interest of the grantee was terminated ; which was when the debt was paid whfsh he had assured. No lien was created against Jonathan Tucker jy the attachment ; and his property in the estate was disembarrassed when the debt was discharged. Hall acquired a permanent interest, because he was actually called upon to pay and did pay ; and the subsequent release of Daniel Tucker-to him gave him a oerfect estate in fee simple.
Petitioners nonsuit.
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