¶1The opinion of the Court was delivered by
¶2On the 22d of March, 1884, the plaintiff sold to the defendant, S. H. Clement, a tract of. land for $2300, for which he executed his promissory note, and consented to a special mortgage and vendor’s lien thereon as securing the same.
¶3This note was signed by the other defendants, Thomas Hansen, A. Rigmáiden and H. C. Drew, as securities in solido.
¶4*708The act of sale and mortgage contains the stipulation of ten per cent attorney’s fees in the event of suit, and the non-alienation clause.
¶5Suit via ordinaria is brought against the principal and sureties, and judgment is demanded against them in solido for the principal and interest of the debt, and the ten per cent attorney’s fees; and also, for the recognition and enforcement of his special mortgage and vendor’s lien on the land.
¶6For answer the securities make the following declaration, substantially, viz:
¶7That they signed the note-in error, and there was a want of consideration for their signatures, in that before they signed same, and at the time they were requested by Clement so to do, the latter informed them that he wished to procure the sum of $2300 from the plaintiff for the purpose of purchasing timbered lands from the United States government, and on which he proposed to secure them by mortgage when purchased.
¶8That afterwards and before reaching a final agreement, one of their number informed the plaintiff and Clement that if the former would himself purchase lands from the government with said sum of money, instead of advancing the $2300 to Clement, and would then sell the land to Clement for $2300, and retain a special mortgage'and vendor’s privilege thereon to secure the payment of the purchase price, he and his associates would sign Clement’s note as securities. j IThat this arrangement was consented to by the plaintiff and Clement, and “ it was upon this agreement and understanding that they signed the note sued on.”
¶9They charge that by means of a fraudulent collusion between the plaintiff and Clement, and without their knowledge, “ the plaintiff did not use the whole amount of said sum of $2300 in the purchase of government lands” by the sum of $500, whichjj he loaned’ to Clement, and the contrary recital of the plaintiff’s'petition andfact of sale are untrue.
¶10They farther aver that if they were to pay said note to plaintiff they would thereby become subrogated to his rights of privilege and mortgage as against their principal, and “ therefore they have been seriously injured and defrauded by said collusion and fraudulent conduct … because if plaintiff and said Clement had performed, in good faith, (their contract), as aforesaid * … ■ the said Clement would have had nearly $500 worth — at the government price of $1 25 per acre — of said lands morejthan he acquired by his said purchase ” on which such mortgage ¿and privilege would have rested; *709and that, by this means, and to [¡this extent, their security has been, and would be reduced in the event of their making payment with subrogation.
¶11Subsequently they amended their answer by averring that since their original answer was filed they have been informed that the plaintiff really employed in his purchase of land from the government only a little more than fifteen hundred dollars, and that he did not loan any portion of the $2300, which was the ostensible consideration of the note and nominal price of the land which he conveyed to Clement.
¶12They allege the intervening insolvency and pending and undetermined cession of Clement, and pray for their entire release and discharge from liability.
¶13On the hearing the judge a quo disregarded the defense set up and gave judgment as prayed for by the plaintiff, and defendants have appealed.
¶14In this Court the plaintiff and appellee requests us to give him judgment of ten per cent on the amount of the judgment appealed from, as damages for the prosecution of a frivolous appeal.
¶15We have taken pains to give in detail the substantial averments of the defendant’s answers for the sake of precision, and for the reason that we regard them as stating no defense to their liability on the note.
¶16Their is neither allegation in their answers nor proof in the record of the inadequacy of the land mortgaged as a security for the debt. Hence, if they should pay it, they could, presumably, be reimbursed. What matters it to them if their theory be correct, and that representations were made as stated, if their security be ample 1
¶17The fact that their principal has become insolvent since the note was executed, and has made a cession under the insolvent law, does not absolve them from either their obligation or duty. Neither does his surrender impair the value of their security or deprive them of their right to procure a seizure and sale of the property.
¶18The proof is positive to the effect that the land is worth $2300, and has not been disposed of by the syndic of the insolvent.
¶19With regard to the rights of mortgaged and privileged creditors of an insolvent, see Spears vs. His Creditors, decided at Monroe at our recently adjourned term. The judgment appealed from is correot and should not be disturbed; but we do not regard this as a proper case for the infliction of damages for the prosecution of a frivolous appeal.
¶20Judgment affirmed.