[Bronson v. Russell.] personal property specifically described in the complaint. The original defendant, Kreuger, filed a disclaimer of ownership of any interest in the property, and suggested that the property sued for belonged to one Anna Russell. Mrs. Russell was then on her own petition made a party defendant to the suit. The plaintiff claimed title to the property as transferee of the bill of sale to said property. This bill of sale was executed on Jan. 9th, 1902, by C. H. Kreuger to Frank H. Thrall, and was transferred by said Thrall to the plaintiff on Jan. 9th, 1902, said Thrall endorsing such assignment of the bill of sale. On July 30th, 1901, the property involved in the suit was sold to Frank H. Thrall and Charles H. Kreuger, and at the time of the sale there was a written instrument executed by these parties. This instrument recited as follows: "This claim witnesseth: That we have this day received from L. Klein, Agt. for Mrs. Rosa Klein, the following personal property, to-wit: (There then followed a description of the property sued for in the present suit and a statement that they agreed to pay $395.00 for the same, in the following manner:) $120.00 cash, and $27.50 on the 1st, of September, 1901, and $27.50 on the 1st of each month thereafter, until paid, as evidenced by our ten promissory notes of even date herewith. "If we fail to pay either of the said notes when due, or attempt to remove or dispose of said property, without the consent of said Leo Klien, Agt., for Mrs. Rosa Klein, the said L. Klien, Agt., may retake the same wherever found and all payments made thereon shall be retained as rent therefor, and the title to said property being retained by L. Klien, Agt., for Mrs. Rosa Klien, until a full compliance of the terms of this agreement." This agreement was signed by Frank H. Thrall and Charles H. Kreuger and dated July 30th, 1901, and was endorsed as follows: "For value received, I hereby transfer the within mortgage and notes to Mrs. Anna Russell without recourse on me this February 4th, 1902. (Signed) Leo Klein, Agt." This agreement was filed for [Bronson v. Russell.] record in the office of the Judge of Probate on Feb. 3d, 1902. There was also introduced in evidence several of the notes referred to in said agreement, which had been assigned to Anna Russell, and which had not been paid. The plaintiff objected to the introduction of evidence of the agreement of purchase and the notes, upon the ground that the mortgage was not recorded until after the purchase of the plaintiff, and that they were incompetent and irrelevant evidence. The court overruled the objection, and to this ruling the plaintiff duly excepted. The cause was tried by the court without the intervention of the jury, and upon hearing all the evidence the court rendered judgment in favor of the defendant, to the rendition of which the plaintiff duly excepted. The plaintiff appeals and assigns as error the rulings of the trial court to which exceptions were reserved. CHARLES P. JONES and W. F. THETFORD, JR., for appellant. Cited Jones v. Morris, 61 Ala. 518; Taylor v. A. M. Association, 68 Ala. 229; Hall v. Cockrell, 28 Ala. 507. No counsel for appellee. DOWDELL, J.-The sole question presented by the record in this case for our consideration, is whether the written instrument offered in evidence by the defendant for the purpose of showing title in herself to the property in question, was a conditional contract of sale. That the title to the property was originally in Mrs. Rosa Klein was without dispute, and the same is true as to the agency of L. Klein. These facts taken in connection with what the contract disclosed on its face, were sufficient to show that L. Klein was acting for Mrs. Rosa Klein in the making of the contract, and of the endorsement on the same.-Richmond Locomotive & Machine Works v. Moragne, 119 Ala. 80. The agent had no title, the reservation, therefore, was to his principal in whom [Dampskibsaktieselskabet Habil et al. v. United States Fidelity & Guaranty Co.] the title resided. No title to the property was to pass under the sale except upon the performance of the conditions named in the contract. The sale was a conditional one. The conditions of the sale were not performed, and the title remained in Mrs. Klein until she conveyed to the defendant. The transaction occurring in the county of Montgomery, under the local statute, (Local Acts, 1898-99, p. 1120), the record of the contract of conditional sale was not necessary to its validity. The title to the property never having passed from the vendor to the vendee under the conditional sale, and the defendant succeeding to the title had the superior claim and right to the property.-Sumner v. Woods, 67 Ala. 139. We find no error in the record, and the judgment will be affirmed. Affirmed. MCCLELLAN, C. J., HARALSON and DENSON, J.J., concurring. Dampskibsaktieselskabet Habil et al. v. United States Fidelity & Guaranty Company. Bill in Equity by Surety to enjoin the collection of Judgment. 1. Surety; right to enjoin collection of judgment pending suit against principal.-Suit was brought against a surety upon a bond for the faithful performance of a contract entered into by the principal with the plaintiff. The plaintiff obtained judgment on which execution was issued. Subsequently the same plaintiff instituted a suit against the principal in the bond for the breach of the contract for the performance of which the bond was given. The defendant in the last suit interposed defenses by setting up pleas in bar. Thereupon the surety against whom the judgment had been recovered filed a bill against the plaintiff to enjoin the collection of the judg [Dampskibsaktieselskabet Habil et al. v. United States Fidelity & Guaranty Co.] ment against it, until the final adjudication of the suit by said plaintiff against the principal in the bond, in which bill it was averred that the pleas at bar introduced by the principal were true. There were averred no general grounds of equitable jurisdiction to enjoin the collection of the judg ment. Held: that the surety could not maintain such a bill to enjoin the collection of the judgment. APPEAL from the Chancery Court of Mobile. The bill in this case was filed by the appellee against the appellant and others. The facts of the case are sufficiently stated in the opinion. GREGORY L. & H. T. SMITH, for appellant.-The creditor cannot be compelled to exhaust his remedy against the principal debtor before resorting to the surety is settled in the very early history of this State.-Abercrombie v. Knox, Snodgrass, et als., 3 Ala. p. 729; Bank of the State of Alabama v. Goden & Lowry, 15 Ala. 616; Skinner v. Barney, 19 Ala. 698. The bond in this case was not merely for the payment of money, but contained collateral conditions and was not. therefore, subject to the conditions of Sections 3884 and 3885 of the Code. These statutes, however, were only declaratory of the common law.-Herbert & Kyle v. Hobbs & Fennell, 3 Stewart p. 9. But whether at common law or under the statute the creditor performs his whole duty when he brings suit against the principal after a notice from the surety.-Hightower v. Ogletree, 114 Ala. p. 94; Darby v. Berney National Bank, 97 Ala. 643. No notice was given in this case, and even where notice is given, it must be specially pleaded.—Shehan v. Hampton, 8 Ala. 942. MITCHELL & TONSMEIRE, contra.-"The contract of suretyship has been defined to be a contract whereby one person engages to be answerable for the debt, default or miscarriage of another. It is an obligation accessorial to that of the principal debtor; the debt is due from the principal, and the surety is merely a guarantor for its [Dampskibsaktieselskabet Habil et al. v. United States Fidelity & Guaranty Co.] payment. A corallary from this definition is that it is of the essence of such a contract that there be a valid obligation of the principal debtor.-Evans, et al v. Keeland, 9 Ala. 46; Johnson, et al, v. Ivey, (Tenn.) 94 Am. Dec. 206; The State v. Parker, 72 Ala. 183. "The release of the principal will release the surety, whether it occurs before or after judgment."-Anthony v. Capell, 53 Miss. 352; 24 Ency. Law, 1st Ed. 845. A surety will be discharged even after a judgment against him by the discharge of the principal because of matters inherent in the transaction. Michener v. Springfield Engine & Thresher Co. (Ind.) 31 L. R. A. 59 The extinguishment of a debt of a principal, no matter how accomplished, extinguishes the collateral liability of the surety.-Bridges v. Blake, (Ind.) 6 N. E. Rep. 833; 24 Ency. Law, 1st Ed., 819; Municipality No. 2 v. Groning, 15 La. Ann. 166; Merrimac Bank v. Parker, 24 Mass. 88; Chapman v. Collins, 66 Mass. 163. MCCLELLAN, C. J.-It appears from the bill in this case, as amended, that the appellee here was surety upon the bond of Thomas-Bailey Machine Works for the faithful performance of a contract entered into by the principal with the Dampskibsaktieselskabet Habil, a corporation under the laws of the Kingdom of Norway. That corporation on the 19th day of June, 1900, instituted a suit against appellee as surety on the bond and after a contest by the surety, obtained judgment against it for the sum of $2,381.90, and execution had been issued on the judgment. It further appears that on the 12th day of November, 1900, the Habil Company instituted a suit against members of the firm of Thompson-Bailey Machine Works, the principals in the bond, for the breach of the contract for the performance of which the bond was given. The Thompson-Bailey Company had interposed defenses to the suit, among them non est factum; the general issue; that the delay in the completion of the contract was due to extra work, and to the stoppage of the work to await inspection by the inspector of the Company; a plea of set-off to the amount of $1.603,10, and an unauthorized alteration of the contract |