Wright v. Austin.

surety, a part of the principal in his hands, and which he had a right so to appropriate if he chose? Surely the assignee of Warren S. Walker had no claims upon the fund, either at law or in equity, until after the claims of the estate were satisfied. But I think the principles of this case have been decided in the case of Vartie v. Underwood, (18 Barb. 561,) where it is held to be the right of the surety, who has pledged his property, with the property of the principal, to have the property of the principal first sold and applied to the payment of the debt. In that case a wife united with her husband in executing a mortgage, to secure the payment of a debt due from him, upon 100 acres of land, of 75 acres of which she owned onesixth (th) part. The premises were sold on the mortgage, and upon the question as to the disposition of the funds, the court (at pages 564, 565) say: "The exception taken by Mrs. Underwood presents a question of more difficulty. It is claimed, in her behalf, that the mortgage debt should be wholly satisfied from the moneys arising from the husband's portion of the premises. This I think is right. The referee reports that the mortgage debt should be satisfied out of the entire fund raised by the sale. Thus the wife is made to pay her portion of the mortgage. In this the referee erred. It is the right of the surety, who has pledged his property, with the property of the principal, to have the property of the principal first sold and applied. This principle applies, and should govern, in directing payments after the sale of the property of both. The property, or money, of the principal is the primary fund, and should be first exhausted. This would leave the money arising from the sale of the wife's share wholly untouched by the mortgage debt." Now the pledge of the property of the wife, by the mortgage, for the payment of the debt, was as absolute and unconditional as was the promise of Austin to pay the debt in

Wright. Austin.

question; and I am unable to discover any reason why a court of equity could in her case interfere and compel the creditor first to resort to the fund belonging to the husband alone, which does not operate quite as forcibly to require the plaintiff in this case first to resort to the fund in his hands, belonging to the principal debtor. Upon the whole, I am of the opinion that if the facts set forth in the answer had been proved, the defendant Austin would have been entitled to equitable relief, and that the court below erred in rejecting the testimony. (See also Newton v. Stanley, 28 N. Y. Rep. 61.)

The judgment should be reversed, and a new trial granted, with costs to abide the event; and the plaintiff be allowed so to amend his summons and complaint as to include James Donney as a party defendant, and so as to settle all questions between the plaintiff, defendant and Donney, concerning the application of the fund alleged by the answer to be in the hands of the plaintiff; and in case the plaintiff shall so amend his summons and complaint, and a new issue be joined between the parties, then all questions as to costs to be reserved until the final determination of the action.

[ONONDAGA GENERAL TERM, April 4, 1865. Mullin, Morgan, Bacon and Foster, Justices.]

RIPLEY vs. LARMOUTH.

It is an elementary principle of construction that effect must be given to every clause and part of an instrument, if it can be done without any violence to the other parts of the instrument. In other words, each part of the instrument shall be operative, if it can consistently be done.

L. having indorsed for the accommodation of W. six promissory notes, for different sums, all of which were then outstanding, W. executed a chattel mortgage, which recited the making and indorsing of three of such notes, for $625, $320 and $300, respectively, (the three not mentioned being for smaller sums,) and was conditioned to indemnify L. against the payment of those three notes, or any or either of them, and against all future liabilities to be incurred by L. for W. Then followed a condition to indemnify and save harmless the said L. of and from all damages, costs, charges and expenses which he had incurred or might incur, or become in any way liable for, on account or by reason of the use of his name as maker, indorser or otherwise, for the mortgagor's accommodation or benefit, &c. Held that this latter condition was clearly surplusage and meaningless, unless it was made to apply to some other subject than the three notes specified and the future indorsements which had been before provided for.

Accordingly held that the parties intended the latter clause of the condition should cover any balance which L. might have to pay upon the three small notes not mentioned in the mortgage.

PPEAL from a judgment in favor of the plaintiff, rendered upon the report of F. W. Hubbard, Esq., sole referee.

S. C. Huntington, for the appellant.

J. F. Starbuck, for the respondent.

By the Court, FOSTER, J. The action was brought to recover the value of 26 cows, which the plaintiff claimed had been wrongfully taken from him by the defendant and converted to his own use.

The defendant claimed to own them by virtue of a mortgage, upon them, executed by one John Wells, a former owner of them, and under whom the plaintiff claimed to own them. The principal facts appearing on

56b 21 41ap146 160a 298

Ripley v. Larmouth.

the trial were as follows: On the 17th day of March, 1853, the defendant executed with John Wells, for the accommodation of Wells, and as his surety, a note for $200, payable to one Stickney, at one day after date, with interest, and on the 10th day of October, 1856, paid $109.21 on it, and took it up. On the 8th day of January, 1854, Wells leased to the defendant his farm of 150 acres, together with 30 cows, of which the 26 in question were a part, for five years, commencing on the 1st day of November, 1854, at the yearly rent of $350, and the defendant took possession of the farm and cows, under and in pursuance of the lease.

On the 26th of December, 1854, the defendant and one Lowry indorsed the note of Wells, for his accommodation, for $625, payable to one Baker, with interest, and payable the 5th of November, 1855, and on the same day Wells executed to them a writing authorizing them to hold and apply the amount of the note and interest to the payment of it, out of the rents of the farm.

On the 10th of April, 1855, the defendant indorsed a note of Wells, and for his accommodation, for $100, payable to bearer, at six months, with use, and after March 17th, 1856, paid $17.14 on it, and took it up. On the 13th of December, 1855, the defendant and one Westcott executed with Wells, and as his sureties, a note for $320, payable to the bearer one year from date, with interest, and on the 14th of March, 1856, he executed to them a writing authorizing the application of the rents of the farm to the payment of it, subject to the previous one to secure the note for $625.

On the 12th of March, 1856, the defendant indorsed for Wells, and for his accommodation, his note for $100, payable at Hungerford's bank, at 60 days from date, and on the 21st of April, 1856, the defendant paid it and took

it up.

On the 14th of March, 1856, the defendant executed

Ripley. Larmouth.

with Wells and as his surety, a note for $300, to one Woodard, payable in one year from the then next December, with interest.

On the 17th of March, 1856, Wells executed a chattel mortgage, to the defendant, upon the 30 cows leased to the defendant with the farm. The mortgage recited the making and indorsing of the three promissory notes for $625, $320 and $300, herein before referred to, and then proceeded: "Now therefore, in consideration of the premises, and for the purpose of securing and indemnifying the said Hugh Larmouth of and from the payment of said notes, or of any or either of them, and any part thereof, principal or interest, and from all costs, charges, damages and expenses which the said Larmouth may be put to, incur or sustain in consequence of signing, indorsing or in any way becoming liable therefor, and also to fully indemnify and at all times hereafter save the said Hugh Larmouth of and from all loss, damage and charge and expenses which the said Larmouth may be put to, incur or sustain by reason or on account of any signature or liability which the said Larmouth may hereafter make or incur for my accommodation, at my request or for my benefit, I do hereby sell, transfer and assign to the said Larmouth the said 30 cows, the same as heretofore leased with my farm to the said Larmouth. Provided always, and this conveyance is upon the express condition, that if I, John Wells, shall and do pay and discharge at maturity the said. several promissory notes heretofore mentioned and described, and shall pay and fully discharge at maturity all such notes and obligations which said Larmouth shall or may hereafter sign, indorse or otherwise become liable for me, at my request or for my accommodation, and shall and do at all times hereafter fully indemnify and save harmless the said Hugh Larmouth, of and from all damages, costs, charges and expenses which the said Larmouth has or may incur or become liable for on account or by reason of the use