Ruble v. Norman. the note was executed; that about the 12th of August, 1868, appellee made a written contract with said Morton, whereby he purchased sixty well-fatted hogs from Morton which he then owned, to be received between the 8th and 10th of December, 1868, for which appellee was to pay the market price, and the note sued upon, on the delivery of the hogs, was to be delivered up by appellee as paid, and received by Morton as part pay for the hogs; that he (appellant) was instrumental in procuring said sale to be made, in order to secure the payment of said note and to relieve himself from his responsibility therefor; that appellee and Morton subsequently changed the place of the delivery of said hogs to Louisville, and the time to the 25th of December, 1868, without appellant's knowledge, but that at the time and place last agreed upon Morton did deliver said hogs to appellee, and after having received them he permitted Morton to sell them and to retain the price, which was one thousand and two hundred dollars, except four hundred and twenty-five dollars, which Morton paid over to appellee, and ́said four hundred and twenty-five dollars were credited on said note; that said hogs were of value greatly more than sufficient to pay said note, and that appellee permitted Morton to withhold the money received for them, or so much thereof as was necessary to discharge said note, without his knowledge or consent; and therefore insists he is released from any obligation to pay said note, Morton being insolvent. Whether the demurrer was properly sustained to the answer is the only question presented by this appeal. We are not aware that this question has heretofore been adjudicated by this court. In Miller v. Stewart, 9 Wheat. 680, the Supreme Court of the United States held that the surety is discharged not only by payment of the debt, or the release of the principal, but by any material change in the relations between the principal and the party to whom he owes the debt, and that the surety can not be held bound in such case Ruble v. Norman. by showing that the change was not injurious to him; for he had a right to judge for himself of the circumstances under which he was willing to be liable, and to stand upon the very terms of his contract. In 2 Parsons on Contracts, 18, it is said: "Anything that operates as a novation discharges the surety; so if a new note be given in discharge of a former one." A fortiori, it would seem that if property of value more than sufficient to pay the debt be delivered to the creditor in discharge thereof, and he afterward permitted the principal debtor to sell the property and retain the price, the surety will be discharged, for he thereby contracts a new debt with his principal debtor, to which the surety is no party, and he can not hold him bound for the former debt, because it has been satisfied. Taking therefore the allegations of the answer to be true, as must be done in adjudicating on the demurrer to it, they constitute a good defense to the action. Wherefore the judgment is reversed, and the cause is remanded with directions to overrule the demurrer to the answer and for further proceedings consistent with this opinion. Place v. Rhem, &c. CASE 53-PETITION EQUITY-APRIL 27. Place v. Rhem, &c. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. AS TO SUBSEQUENT CREDITORS a conveyance is not fraudulent merely because it was voluntary. (Revised Statutes, section 2, chapter 40, 1 Stanton, 546.) 2. The validity of a voluntary conveyance depends upon the intention with which it was executed. 8. A house and lot was conveyed to the wife in consideration of six thousand dollars paid, and two notes of the husband, for two thousand dollars each, payable in one and two years after the date of the conveyance, and secured by a lien retained therein. The first payment was made with money he had long before given to his wife, and placed under her separate control, etc. The two notes were paid by the husband. The conveyance was not attacked by any prior creditors, and is held not to have been void or fraudulent as to subsequent creditors. The court say: "The evidence concerning his liabilities at that time is not such as in our opinion should warrant the belief that he procured the sale and conveyance to be made to his wife with intent to defraud his then existing or subsequent creditors." O. F. STIRMAN, I. R. GREENE, 3 Monroe, 157, Young v. Crozier. 1 Dana, 531, Doyle, &c. v. Sleeper, &c. 8 Meeson & Welsby, 405, Gale v. Williamson. 2 Beaven, 340-45, Townsend v. Westcott. Story's Equity Jurisprudence, sections 361-3, 405. H. C. PINDELL, Place v. Rhem, &c. 2 Bush, 76, Lowry v. Fisher. 9 B. Monroe, 231, Debell v. Foxworthy's heirs. 1 Parsons on Contracts, 345. 3 Parsons on Contracts, 403. 16 B. Monroe, 642, Falmouth Bridge Co. v. Tibbatts. 2 Metcalfe, 141, Hobbs v. King. 3 Metcalfe, 593, Nunnally, &c. v. White's ex'rs, &c. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT. On the 14th day of November, 1864, Mary A. Richardson sold and conveyed to the appellant, Sarah Catherine Place, then the wife of John C. Place, a house and lot in the city of Louisville, for the consideration of ten thousand dollars, the deed reciting the payment of six thousand dollars thereof in cash, and the acceptance of the two promissory notes of John C. Place for the balance, in two annual installments of two thousand dollars each, for which a lien was reserved in the deed upon the property. These notes appear to have been respectively paid at or near their maturity; but whether with the money of the appellant or her husband does not satisfactorily appear. On the 5th of August, 1868, the appellee, Lewis Rhem, a judgment creditor of John C. Place, for several debts amounting to about $3,967.09, all created since the date of said conveyance, commenced this suit in equity against Place and wife, exhibiting his judgment and executions thereon, which had been returned, in substance, "no property found," and alleging the insolvency of Place, and that he had paid the entire consideration of the conveyance to his wife with his own money, and fraudulently procured the deed to be made to her instead of himself to avoid the payment of his debts; and seeking to set aside the conveyance, and to have the property, which he caused to be attached, subjected to the payment of his claims. Place and wife answered separately, controverting the Place v. Rhem, &c. allegations of the petition imputing fraud to either of them, denying that the price of the property was paid with his money, and averring that the means used in paying for the property was the money of Mrs. Place, which she had for years before had and controlled in her own right, and with her husband's assent kept and withheld from him for the purpose of buying her a residence. In the mean time, and shortly before the institution of this suit, Place and wife entered into a contract with the appellee, George Lindenberger, stipulating for the sale of the house and lot to him for twelve thousand five hundred dollars, and for the purchase from him of one hundred acres of land in Jefferson County for fifteen thousand dollars, which sales were consummated on the 12th day of August, 1868, by conveyances— Place and wife simultaneously executing to Lindenberger a mortgage on the one hundred acres of land to secure the payment of a balance owing to him, and also to indemnify him against loss in consequence of the claims of Rhem and others incumbering the title to the house and lot. In the progress of the suit Lindenberger was made a party, and filed an answer and cross-petition, seeking a foreclosure of the mortgage for the satisfaction of the debts secured by it, and to reimburse him for expenses incurred in consequence of incumbrances on the house and lot, and other relief in the event of the enforcement of Rhem's attachment. The chancellor of the court below, on hearing the cause, was of the opinion that the transaction by which the title to the house and lot was conveyed to Mrs. Place was, as his opinion expresses it, "tainted with actual as well as constructive fraud," and that the property should be subjected to the satisfaction of Rhem's claims, and so adjudged by sustaining the attachments and directing a sale of the property. The court further adjudged a foreclosure of the mortgage to Lindenberger, and a sale of so much of the land as necessary to |