476 HODGES v. MULLIKIN.—1 BLAND.

tember next; and each party is authorized to take testimony,
before any justice of the peace, to be read at the hearing, on giv-
ing to the opposite party three days notice as usual. Provided
that a copy of this order, together with a copy of the said petition,
be served on the complainant on or before the fifth day of Sep-
tember next.

Under this order testimony was taken and returned; sundry
documents were filed in relation to the matter of the petition; and
the case was thus brought before the Court.

BLAND, C., 10th October, 1828.—The matter of the petition of
the defendant Mnllikin standing ready for hearing, and the solici-
tors of the parties having been fully heard, the proceedings were
read and considered.

It appears, that the defendant Thomas Harwood was indebted
to the State, and also to several individuals; for the payment of
which debts, the late Benjamin Harwood and the defendant Mulli-
kin, had become bound, by bond or by promissory notes, as his
sureties; and that, for the purpose of saving harmless these his
sureties, he executed a deed, on the 7th of April, 1810, by which
he conveyed certain real and personal property to them, and the
survivor of them, in trust for the payment of those specified debts
for which they or either of them were bound as his surety: and,
in case either of those debts were not paid, within five years from
that day, with power to sell the whole, or so much thereof as
might be necessary to satisfy them. After the execution of this
deed of trust, this Thomas Harwood being indebted to the plain-
tiff Hodges, * he, Harwood, on the 11th of September, 1810,
505 by a deed legally executed, mortgaged the same property to
Hodges for the debt due him. But as his mortgage recites the
deed of trust, Hodges could only take subject to the prior lien
created by that deed.

On this state of things, Hodges filed his bill, on the 15th of
June, 1822, against Thomas Harwood, and Benjamin Mullikin, as
the surviving trustee, to have the property sold for the satisfac-
tion of the debt for which it had been mortgaged; by his bill, he
makes an exhibit of the deed of trust as well as the mortgage,
and states, that Benjamin Harwood was dead; in consequence of
which the trust had survived to the defendant Mullikin. This
suit, thus instituted, was marked on the docket for the use of
Wilson & Sons. Harwood, in his answer, filed on the 12th of
December, 1822, states that the debts specified in the deed of
trust were still unpaid, and insists that a decree in favor of Hodges
cannot be passed; on the ground, that those creditors have a prior
lien, and should be made parties. But Mullikin, in his answer,
filed on the 14th of July, 1823, merely says, that he has sustained