¶1It was only in a court of equity, that the claim of Marshall could be adjusted. He claimed indemnity against his suretyship for Colvert; and as no fraud in the deed of trust is proved or alleged, that deed gave him priority over the executions. The only creditor, who answered the bill, claimed priority to any of the other creditors, out of the surplus after the purposes of the deed of trust were satisfied. An account ought to have been taken, the amount of the responsibility of Marshall for Colvert ascer*149tained, and the surplus, if any, applied to the payment of the executions, according to the priority they gave to the proceeds of the property. The decree is reversed, the injunction reinstated, and the cause remanded for further proceed-
5 Va. 146
Marshall v. Colvert
Decided March 15, 1834
Supreme Court of Virginia · decided 1834-03-15
<p>C. mortgages slaves to M. to indemnify bim against loss by reason of suretyship incurred by him for C., then creditors of C. levy writs of fi. fa. on the mortgaged slaves; it being yet uncertain whether M. will sustain loss by reason of his suretyship, and if so to what amount, M. files a bill in equity, praying an injunction to prevent the sale of the slaves under the executions; and the chancellor awards an injunction, not to inhibit the sale, but to inhibit the sheriff from paying over the proceeds thereof, till further order; but he afterwards dissolves this injunction: upon ' a question, whether the court of chancery had jurisdiction, and whether the plaintiff ought not to be left to pursue his remedy at law: Held, the case is proper for relief in equity, and the injunction ought to be reinstated.</p>
Decided 1834-03-15