The state of this case is shortly this: the trustees in the deed made by Bell and Joyner for the benefit of the plaintiff made a sale, at which Barnes purchased. He declined paying, upon the ground, that the plaintiff knew of the previous unregistered deeds of trust, in which Bell and Joyner had provided an indemnity for Barnes against the suretyships in which he was involved for them. The bill admits this equity of Barnes ; for altho’ he had not then paid the debts, yet he was liable for them, and the principals were insolvent. But the bill sets up an equity of the same nature, and founded on precisely a similar state of facts, against Barnes himself. The bill alleges, and the answer also admits, that at that time Barnes was also insolvent, and the plaintiff was surety for him. Upon the direct authority of Williams v. Helme, (ante 1 vol. 151,) founded on the clearest principles, the plaintiff had, then ■ the right of getting any funds he could of Barnes, and retaining them for his indemnity ; and he may thus retain against an assignee inequity for value, and without notice. A surety in such a situation is a creditor ; and the subsequent assignee only succeeds to his assignor’s rights, and subject to the equity of the surety, which is prior. If indeed the contest was between the original creditors of Bell and Joyner, to whom Barnep Avas liable *33as surety, that might make a difference. Had they not been paid, by Barnes, they might have asked for the fund createdfor their satisfaction, both against the plaintiff and Barnes. But they are satisfied, and out of the way. The question is, whether Barnes, who vras bound to pay to Cotton, the trustee, for the effects purchased at the sale, and who did not, under an agreement that the title should remain unchanged, and subject to all the demands of the plaintiff, can claim that property or the price of it for himself — not for the creditors of Bell and Joyner — as against a man who was then his surety for his debts to a larger amount, and afterwards was obliged to pay them. The equity of the plaintiff against Barnes is palpable, and must be felt by every body upon the stating of it. An assignment of the property to the defendants confers on them no better claim. They did not get the legal title thereby; for it is proved by the deposition of Cotton, read by consent, that the title was reserved in him by express agreement between him, James S. Battle and Barnes, founded on the very claim now set up by the plaintiff.
The present defendants admit they disposed of the effects at Barnes' sale, under another agreement that the proceeds should be subject in their hands to the claim which the plaintiff or his trustee, Cotton, had to the specific effects ;' and that they yielded the sum of $1163 62.' This sum belongs to the plaintiff upon the principles assumed by the court; if in point of fact the demand against Barnes, arising out of the debts paid for him, shall amount to as much, after deducting what may be in the hands of Cotton, or the plaintiff, (if there be any thing) arising from Bell and Joyner's sales, applicable to the satisfaction of the debts which Barnes or his assignees have paid. The bill indeed charges 'very large demands of the plaintiff on Barnes, after all those allowances; and the answer admits that a balance is due, on the whole, from Barnes, but does not confess a particular sum. This makes it necessary to have an inquiry; if the parties cannot themselves agree, after this declaration of the principie by the court.
Per Curiam. — ■Decree according r.v