The spirit and purpose of the trust are to indemnify the surety named in the deed of trust against loss by reason of the suretyship therein mentioned and particularly specified. The trust property — land—should, in *421good faith, be devoted, if need be, to that purpose, and the execution of the power of sale, to that end, should not be restrained, unless for substantial and just cause. If it be granted that strictly under the letter of the trust, and the power of the sale in connection therewith, the trustee could not sell the land without the direction of the Court, in a proper action for the purpose, until the surety had in fact paid the debt of his principal, any question in that respect was settled and concluded by the record and judgment in the former action, pleaded by the defendants in this action, which embraced and settled the cause of action alleged in this case.
In the former action mentioned, the present cause of action was in substance — almost precisely — alleged. In the settlement of the matters then in controversy it was agreed by and between the parties to the action that no sale of the property should then be made as then intended by the trustee, but it was adjudged by such consent, “that J. C. Buxton, trustee (the present defendant), if so required, may advertise to sell the land conveyed in the mortgage of Brower and wife to J. C. Buxton, trustee, and Winston Pulton (the other defendant and surety) in time to make sale by June 1st, 1888.” In pursuance of the deed of trust and this agreement of record, the defendant was proceeding to sell the land when the appellant brought this action, asking relief, by injunction, upon the ground that the surety has not yet in fact paid the principal debt, though long past due, and thus suffered. If, as we have seen, such objection to the sale of the property might at first have had force, it was obviated by the subsequent agreement of record, and 'the letters in evidence of the appellant to the defendant trustee, asking for a delay of the sale as matter of favor, show that he'so well understood.
There is no error. The motion for an injunction was properly denied. Affirmed.