This doctrine is repudiated entirely in some jurisdictions and has only a limited application in others. Thus it has been maintained that a surety cannot require the creditor to exhaust his remedies against the principal, before resorting to the surety, except under very special circumstances: Abercrombie v. Knox, 3 Ala. 728, 37 Am. Dec. 721; Brooks v. Carter, 36 Ala. 682. In Louisiana it is maintained that a surety cannot require the creditor, before resorting to him, to sue the principal debtor. His remedy is to pay the debt and exercise the creditor's rights against his principal to which he is subrogated: Wood v. Fitz, 10 Mart., O. S., 196; Bryan v. Cox, 3 Mart., N. S., 574; Boutte v. Martin, 16 La. 133; Bonny v. Brashear, 19 La. 383; Griffing v. Caldwell, 1 Rob. 15; Gengot v. Fournier, 4 Rob. 435. The same rule is maintained in Minnesota repudiating the doctrine of King v. Baldwin, 17 Johns. 384, 8 Am. Dec. 415, and other cases of similar holdings: Huey v. Pinney, 5 Minn. 310.

III. Insolvency of Principal or Surety.

Chancery will entertain a suit by a surety to reach credits of the principal and apply them to a judgment obtained against them jointly, where the principal is insolvent, although the surety has not paid the judgment: McConnell v. Scott, 15 Ohio, 401, 45 Am. Dec. 583. Or if a principal becomes insolvent after the debt is due and before it is paid, his surety has an immediate equity against him either before or after paying the debt: Crafts v. Mott, 5 Barb. 305; Egerton v. Alley, 6 Ired. Eq. 188. Actual payment need not be made by a surety to enable him to sustain an action against his insolvent principal to compel payment of the debt out of his principal's assets: Polk v. Gallant, 2 Dev. & B. Eq. 395, 34 Am. Dec. 410; Allen v. Cooley, 53 S. C. 414, 31 S. E. 634.

The insolvency of the surety at the time the debt becomes due is no obstacle to his maintaining a bill in equity to enforce his exonera. tion and compel his principal to pay the debt before he has himself paid it: Fener v. Barrett, 4 Jones Eq. 455.

IV. Receivership Against Principal.

In Michigan, it is maintained as before noted, contrary to the general rule, that a surety is presumed to assume his responsibility deliberately, and if his principal fails to meet his obligation with due diligence, the surety cannot appeal to a court of equity for protection and thereby compel his principal to pay the debt, but must first perform his obligation as surety, and thereafter sue at law for indemnity. Hence it is also maintained in that state that the surety cannot, by proceedings in equity or otherwise, compel his principal to turn his property over to a receiver to secure a debt past due, or satisfy it, before obtaining judgment and exhausting his remedy at law: McElroy v. Hatheway, 44 Mich. 399, 6 N. W. 867; Nash v. Benchard, 87 Mich. 85, 49 N. W. 492. The contrary rule, however,

obtains in South Carolina, and a surety is there entitled to have a receiver appointed for the purpose above set out, without first paying the debt or obtaining judgment against the principal: Allen v. Cooley, 53 S. C. 414, 31 S. E. 634.

V. Right to Compel Payment Out of Principal's Estate. There is an implied stipulation in usual unconditional contract of suretyship that the principal will pay the debt at maturity and thus protect the surety, and upon his failure to do so, the surety has the right to compel payment of the debt out of the principal's estate, although the surety has made no payment before the commencement of his suit: Conley's Heirs v. Boyle's Exrs., 6 T. B. Mon. 637; Thigpen v. Price, Phill. Eq. (62 N. C.) 146; Henderson etc. Co. v. John Shellito Co., 64 Ohio St. 236, 83 Am. St. Rep. 745, 60 N. E. 295. A surety against whom and his principal separate judgments have been obtained may come into equity for aid in subjecting the estate of the principal to the payment of the debt, without first advancing or paying the money: Stump v. Rogers, 1 Ohio, 533. A surety is entitled, without paying the debt, to have the estate of his principal, so far as applicable, applied to the payment of such debt, and where on a creditor's bill there is shown to be assets belonging to the estate of the principal debtor, deceased, an account of such assets should be ordered: Paxton v. Rich, 85 Va. 378, 7 S. E. 531, 1 L. R. A. 639.

VI. Right to Set Aside Principal's Fraudulent Transfers.

As a surety has an equitable right to have the property of his principal exhausted before resort is had to him, he has a right after the maturity of the obligation to maintain an action to set aside a fraudulent conveyance made by his principal without having paid any money for him.

The surety is a creditor within the meaning of the statute of frauds from the time he signs the obligation, and may set aside a fraudulent conveyance executed by his principal after becoming so liable and before payment of the debt: Loughridge v. Bowland, 52 Miss. 546; Taylor v. Heriot, 4 Desaus. 227.

The administrator of a deceased surety on an official bond may join in an action to set aside a fraudulent conveyance of his intestate's principal without first having paid out any money for him: Strong v. Taylor School Township, 79 Ind. 208. And the fact that the estate of a deceased principal has insufficient assets to pay a debt on which plaintiff is surety is a sufficient showing of equity to sustain a creditor's bill to subject the principal's property fraudulently conveyed to the payment of the debt, and for the appointment of a receiver: Wesborn's Admr. v. Kahn, 93 Ala. 201, 9 South. 729. It has also been decided that a surety cannot, without having paid the debt or sustained loss, before any judgment has been rendered against him,

maintain a bill to set aside a fraudulent conveyance by his principal and have the property subjected to the payment of the overdue debt, without bringing the creditor into court as a party: Oneal v. Smith, 10 Lea (78 Tenn.), 340.

VII. Right to Foreclose Indemnity Mortgage.

Although there is some conflict of authority, the great weight thereof tends to firmly establish the rule that a surety secured by collateral mortgage given by his principal may foreclose it before paying the principal's debt, and for the whole amount of his liability. In such case it is generally only necessary that the principal debt be due and remain unpaid to enable the surety to forclose such mortgage: De Cottes v. Jeffers, 7 Fla. 284; Constant v. Matteson, 22 Ill. 546; Wells v. Merritt, 17 Ind. 255; Reynolds v. Shirk, 98 Ind. 480; Bates v. Wiggin, 37 Kan. 44, 1 Am. St. Rep. 234, 14 Pac. 442; Iberia Cypress Co. v. Christen, 112 La. 448, 36 South. 490; Thurston v. Prentiss, 1 Mich. 193; Kramer v. Mechanics' Bank, 15 Ohio, 253; Rodgers v. Jones, 1 McCord Eq. 221; Beasley v. Newell, 40 S. C. 16, 18 S. E. 224. Thus sureties on a note after the principal debtor makes default may enforce a mortgage given to secure them, and have the money applied to the payment of the note, though they have not been required to pay anything on it: McDaniel v. Austin, 32 S. C. 601, 11 S. E. 350; and a surety may, after maturity of debt, for the payment of which he is liable, replevy goods mortgaged to secure him as surety, and may foreclose such mortgage, although he has not actually paid such debt: Bates v. Wiggin, 37 Kan. 44, 1 Am. St. Rep. 234, 14 Pac. 442. If such mortgage of indemnity contains an express covenant of the mortgagor to pay the debt therein described upon his failure to pay and when his liability is ascertained and fixed by the debt becoming due, the surety who holds the mortgage may at once, without having paid the debt or any part thereof, maintain an action for the foreclosure of the mortgage and recover therein, as damages, actual compensation for his total probable loss: Gunel v. Cue, 72 Ind. 34; Malott v. Goff, 96 Ind. 496; Reynolds v. Shirk, 98 Ind. 480; Goff v. Hedgecock, 144 Ind. 415, 43 N. E. 644.

After the creditor has obtained judgment against the surety, the latter has a right in equity to appropriate any security given him by bis principal as indemnity for his liability and may immediately foreclose a mortgage given him as indemnity without first paying the judgment: Kramer v. Mechanics' Bank, 15 Ohio, 253. And a surety secured by collateral mortgage may foreclose it before paying the debt of his principal, and for the whole amount of his liability, although the creditor has obtained judgment for less: Hellams v. Abercrombie, 15 S. C. 110, 40 Am. Rep. 684.

When a debtor gives his surety a mortgage to indemnify him against loss, the property mortgaged can only be applied when the

surety has paid the debt, or has become immediately liable for its payment, and until then a court of equity will not interfere: Constant v. Matteson, 22 Ill. 546; Iberia Cypress Co. v. Christen, 112 La. 448, 36 South. 490.

In some jurisdictions, on the other hand, the doctrine is maintained that a surety who has taken a mortgage from his principal for his indemnity is not entitled to a foreclosure until he has paid all or some part of the debt of his principal or, in other words, until actual damages have been sustained by him: Shepard v. Shepard, 6 Conn. 37; Forbes v. McCoy, 15 Neb. 632, 20 N. W. 17; Lewis v. Duane, 141 N. Y. 302, 36 N. E. 322; Maloney v. Nelson, 144 N. Y. 182, 39 N. E. 82. It has been decided that an indorser of a note, who has received indemnity against such indorsement by deed of trust from the maker, cannot proceed to subject the property conveyed to the payment of the note until he has paid it and taken a reassignment of it: Lewis v. Starke, 10 Smedes & M. 120. Also that if the condition of a mortgage executed by the principal debtor to his surety is to indemnify the latter against loss or damage arising from the payment of the debt, such condition is not broken until actual payment made by the surety, and that his right to foreclose the mortgage does not accrue until that time: M'Lean v. Ragsdale, 31 Miss. 701.

VIII. Dissolution of Partnership.

In cases similar to the principal case the rulings of the courts have uniformly been in accord with the rule laid down in the principal case. Thus on the dissolution of a partnership, a partner who receives property of the firm and assumes the firm debts, is, as to the other partners, the principal debtor, and they are his sureties, and may sue in equity after the maturity of such debts to compel such principal to pay them without having paid them themselves: Croone v. Bivens, 2 Head (39 Tenn.), 339.

MCLEOD v. McLEOD.

[145 Ala. 269. 40 South. 147.]

DEEDS-Consideration.-A deed from a parent to his child will not be set aside upon the ground of mere inadequacy of consideration. (p. 42.)

DEEDS-Parent and Child-Presumption of Undue Influence.A deed of gift from parent to his child alone and of itself raises no presumption of undue influence, as the parent is presumed to be the dominant party. (pp. 42, 43.)

DEEDS-Parent and Child-Undue Influence Burden of Proof.—In an action by a parent against his child to set aside a conveyance made by the former to the latter, on the ground that it was

executed under undue influence, the burden of proof is upon the former to establish that fact. (p. 43.)

DEEDS-Undue Influence-Confidential Relations. If the donor and the donee stand in confidential relations, a presumption of undue influence affecting the validity of the gift arises only where the donor is the weaker party. (p. 43.)

G. L. Comer and S. H. Dent, Jr., for the appellant.

A. H. Merrill, for the appellee.

272 DOWDELL, J. The bill in this case is one by the father against his daughters, and is for the purpose of setting aside and annulling a certain paper writing, whereby he had transferred or assigned all of his interest in the estate of his deceased son to his said daughters. The relief sought by the bill is based upon charges of fraud and undue influence, and inadequacy of consideration is alleged. Mere inadequacy of consideration is not a sufficient ground for setting aside and annulling a contract. As was said in Judge v. Wilkins, 19 Ala. 765: "I follow the language of the authorities in saying that inadequacy of price, or other inequality in the bargain, is not within itself a sufficient ground to avoid a contract in a court of equity, on the ground of fraud; for courts of equity, as well as courts of law, must act upon the ground that every person, who is not under some legal disability, may dispose of his property in such manner and upon such terms as he sees fit; and whether his bargains are discreet or not, profitable or unprofitable, are considerations, not for courts of justice, but for the party himself": 1 Story's Equity, 244; Adams' Equity, 392; Bolling v. Munchus, 65 Ala. 558; Goodlett v. Hansell, 66 Ala. 151; Malone v. Kelley, 54 Ala. 532.

The appellee, the complainant in the court below, seeks to invoke the doctrine that in transactions inter vivos, where the parties stand in confidential relations, and the grantee, who is the beneficiary, is the dominant spirit in the transaction, that the law raises up the presumption of undue influence and casts upon the opposite party the burden of repelling such presumption by satisfactory evidence whenever the transaction is assailed. In a case like the one before us, the question as to who is the dominant spirit in the transaction is one of fact, and becomes one of vital importance in the application 273 of the doctrine above stated. A donation from the parent to the child, alone and of itself, would