Gjreen, President,
delivered the opinion of the Court :
, 4 ihe appellee insists that this Court has no jurisdiction, the matter in controversy exclusive of costs being not more than $100.00. The Constitution and law provide that this court shall have appellate jurisdiction in civil cases, where the matter in controversy, exclusive of costs, is of greater value or amount than $100.00, Acts of 1872-3, pp. 25 and 56. The words exclusive of costs in the Constitution and law refer of course to the costs in the suit which is brought up by the appeal or writ of error. It is only by regarding the costs upon the forfeited forthcoming bond and the costs of the former chancery suit as excluded from the amount in controversy in this suit, that the appellee can possibly reduce the amount in controversy to a sum not greater than $100.00; and even then hé will have to insist that the plaintiffs claim be regarded not as one-half the amount that she and her intestate had paid on the forfeited forthcoming bond with interest thereon from the time the sums were respectively paid, but as one-half of the amount which would have been required on the day she instituted her suit to pay off the entire amount of the forfeited forthcoming bond and interest, excluding the costs of the forfeited forthcoming bond and of the prior chancery suit which she had to pay. For even if all the costs are excluded, still the actual amount of the forfeited forthcoming bond and interest at the time the final decree was rendered exceeded $200.00. It then amounted to $215.00; but the plaintiffs claim when she instituted this suit on January 16, 1873, was for one-half of the amount she and her intestate had paid on this forfeited forthcoming bond, including the costs thereof and the costs she had paid in the chancery suit brought to enforce its payment with the interest on such payments; for the landsof the plaintiff’s intestate and of his co-security Dawson were liable to the payments of said forfeited forthcoming bond, the costs on the same and the costs of the chancery suit brought to enforce it,' [356]*356The amount in controversy in this cause when so calculated was, when the suit was brought, $129.50, the whole amount and interest which she and herintestate had then paid, being $259.00.
The appellees claim that Dawson’s payment to R. S. Brown, assignee of Pollard, Smith & Co., of $56.00 on January 1, 1^66, ought to be credited to him as if it had been a payment on the forfeited forthcoming bond on which he was a surety, and so regarding it, he had paid his one-half of said bond. But if this was a credit to which he was entitled, it would not have paid off one-half of this forfeited forthcoming .bond and interest, for this bond, interest and costs then amounted to $153.85; and his half of this then would have been $76.92 besides one-half of the costs of the chancery suit, which should also have been paid by him. So that if his claim, that he was entitled to this credit and the plaintiff was eñ-titled to that much less than the amount she had paid was good, still the plaintiff, when this suit was instituted, would have been entitled to recover of his co-security about $50.00. But his pretension, that he should be allowed this payment of $56.00, and that his co-security should not be allowed the full amount he had paid, but must abate this $56.00 as that amount was paid by these securities more than the full amount due from them, seems to me without any foundation in justice. It is claimed, because, it is said, the .decree in the three chancery suits entered in 1865 in effect, though not in terms, directed Dawson to pay this sum to Pollard, Smith & Co., and he accordingly paid it to B.. S. Brown, their assig-nee. We shall presently see that the decree of 1865, when fairly interpreted, gave no such direction or order ; and it is obvious, even if it had so directed, it would not have deprived E. & S. Prey, the obligors in-the forfeited forthcoming bond, from making the whole of their debt out of the securities in the bond, and this the court distinctly recognized in the decree at the August- term? 18-71, referred to • in the commissioner’s report, which [357]*357expressly directed the special commissioner, out of the proceeds of the rental of the lands of these securities, to pay the whole of this debt and interest. How then can the full payments made by B. Clevenger, one of these sureties, and by his advice to this special commissioner be rejected, because the other surety had paid the rents due from him to. parties who had no pretense of any claim to them, even if the court had made the error in the decree of 1865, which it is claimed it did make ?
The commissioner rejected this payment of $56.00 by Dawson to R. S. Brown as assignee of Pollard, Smith & Co., on January 1, 1866, asan authorized payment made to parties who had no pretension of claim against Dawson or his co-security. Did he err in so doing? The decree of July, 1865, certainly did not order him to pay this money, or any money, to Pollard, Smith & Co., or their assignee. It was his duty to have paid this sum to the special commissioner; and had he so done, as did his co-security, the plaintiff in this cause, he would have been entitled to a credit for it, even if the court had erroneously ordered it to be paid to Pollard, Smith & Co., who had no claim to it of any sort, or even if the special commissioner had improperly so paid it without the order.of the court.. But the court in fact by its decree of 1865 did not order this rent due from Dawson to be collected and paid to Pollard, Smith & Co.
This decree says : “ On mature consideration the court is of opinion that the liens of the two judgments of the petitioners, Pollard, Smith & Co., filed, marked “A” and “B,” with this petition, are prior and paramount to the liens of the judgments of the complainants in the three foregoing chancery suits, and that the petitioners in said judgments should be fully satisfied before said judgments of said complainant.” These judgments referred to and made a part of this decree are accordingly filed. One of them is a judgment in favor of Pollard, Smith & Co. v. Edward Davis and David Davis for $>1,656.49 with interest from.January 8, 1857, and costs; and the other a [358]*358judgment in favor of Pollard, Smith & Co. v. Edward “Davis for $546.04 with interest from January 8,1857, and costs. Edward and David Davis were defendants in the two chancery suits other" than the one based on this forthcoming bond; and in that suit Edward Davis and his sureties in the forthcoming bond, Dawson and Clev-enger, alone were defendants. This decree was entered in all three of these cases; and as on the face of the decree it appears that the judgments of Pollard, Smith & Co. were only against the Davises, and were not against either Dawson or Clevenger, it is perfectly apparent that all the court decided in the portion of the decree above recited was, that these judgments had, in administering the assets of the Davises, priority over other judgments, and that the assets of the Davises under the control of the court were to be applied to the payment of these two judgments before any of them should be applied to the payment of any of the judgments of the complainants in these chancery suits. The court certainly in so much of this decree as I have quoted does not say, and could not probably have meant to say, that the assets arising from the renting of the lands of Dawson and Clevenger should be applied, either first or at all, to the payment ot the judgments of Pollard, Smith & Co., who had no judgments against them or any claim of any sort upon them.
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Gjreen, President,
delivered the opinion of the Court :
, 4 ihe appellee insists that this Court has no jurisdiction, the matter in controversy exclusive of costs being not more than $100.00. The Constitution and law provide that this court shall have appellate jurisdiction in civil cases, where the matter in controversy, exclusive of costs, is of greater value or amount than $100.00, Acts of 1872-3, pp. 25 and 56. The words exclusive of costs in the Constitution and law refer of course to the costs in the suit which is brought up by the appeal or writ of error. It is only by regarding the costs upon the forfeited forthcoming bond and the costs of the former chancery suit as excluded from the amount in controversy in this suit, that the appellee can possibly reduce the amount in controversy to a sum not greater than $100.00; and even then hé will have to insist that the plaintiffs claim be regarded not as one-half the amount that she and her intestate had paid on the forfeited forthcoming bond with interest thereon from the time the sums were respectively paid, but as one-half of the amount which would have been required on the day she instituted her suit to pay off the entire amount of the forfeited forthcoming bond and interest, excluding the costs of the forfeited forthcoming bond and of the prior chancery suit which she had to pay. For even if all the costs are excluded, still the actual amount of the forfeited forthcoming bond and interest at the time the final decree was rendered exceeded $200.00. It then amounted to $215.00; but the plaintiffs claim when she instituted this suit on January 16, 1873, was for one-half of the amount she and her intestate had paid on this forfeited forthcoming bond, including the costs thereof and the costs she had paid in the chancery suit brought to enforce its payment with the interest on such payments; for the landsof the plaintiff’s intestate and of his co-security Dawson were liable to the payments of said forfeited forthcoming bond, the costs on the same and the costs of the chancery suit brought to enforce it,' [356]*356The amount in controversy in this cause when so calculated was, when the suit was brought, $129.50, the whole amount and interest which she and herintestate had then paid, being $259.00.
The appellees claim that Dawson’s payment to R. S. Brown, assignee of Pollard, Smith & Co., of $56.00 on January 1, 1^66, ought to be credited to him as if it had been a payment on the forfeited forthcoming bond on which he was a surety, and so regarding it, he had paid his one-half of said bond. But if this was a credit to which he was entitled, it would not have paid off one-half of this forfeited forthcoming .bond and interest, for this bond, interest and costs then amounted to $153.85; and his half of this then would have been $76.92 besides one-half of the costs of the chancery suit, which should also have been paid by him. So that if his claim, that he was entitled to this credit and the plaintiff was eñ-titled to that much less than the amount she had paid was good, still the plaintiff, when this suit was instituted, would have been entitled to recover of his co-security about $50.00. But his pretension, that he should be allowed this payment of $56.00, and that his co-security should not be allowed the full amount he had paid, but must abate this $56.00 as that amount was paid by these securities more than the full amount due from them, seems to me without any foundation in justice. It is claimed, because, it is said, the .decree in the three chancery suits entered in 1865 in effect, though not in terms, directed Dawson to pay this sum to Pollard, Smith & Co., and he accordingly paid it to B.. S. Brown, their assig-nee. We shall presently see that the decree of 1865, when fairly interpreted, gave no such direction or order ; and it is obvious, even if it had so directed, it would not have deprived E. & S. Prey, the obligors in-the forfeited forthcoming bond, from making the whole of their debt out of the securities in the bond, and this the court distinctly recognized in the decree at the August- term? 18-71, referred to • in the commissioner’s report, which [357]*357expressly directed the special commissioner, out of the proceeds of the rental of the lands of these securities, to pay the whole of this debt and interest. How then can the full payments made by B. Clevenger, one of these sureties, and by his advice to this special commissioner be rejected, because the other surety had paid the rents due from him to. parties who had no pretense of any claim to them, even if the court had made the error in the decree of 1865, which it is claimed it did make ?
The commissioner rejected this payment of $56.00 by Dawson to R. S. Brown as assignee of Pollard, Smith & Co., on January 1, 1866, asan authorized payment made to parties who had no pretension of claim against Dawson or his co-security. Did he err in so doing? The decree of July, 1865, certainly did not order him to pay this money, or any money, to Pollard, Smith & Co., or their assignee. It was his duty to have paid this sum to the special commissioner; and had he so done, as did his co-security, the plaintiff in this cause, he would have been entitled to a credit for it, even if the court had erroneously ordered it to be paid to Pollard, Smith & Co., who had no claim to it of any sort, or even if the special commissioner had improperly so paid it without the order.of the court.. But the court in fact by its decree of 1865 did not order this rent due from Dawson to be collected and paid to Pollard, Smith & Co.
This decree says : “ On mature consideration the court is of opinion that the liens of the two judgments of the petitioners, Pollard, Smith & Co., filed, marked “A” and “B,” with this petition, are prior and paramount to the liens of the judgments of the complainants in the three foregoing chancery suits, and that the petitioners in said judgments should be fully satisfied before said judgments of said complainant.” These judgments referred to and made a part of this decree are accordingly filed. One of them is a judgment in favor of Pollard, Smith & Co. v. Edward Davis and David Davis for $>1,656.49 with interest from.January 8, 1857, and costs; and the other a [358]*358judgment in favor of Pollard, Smith & Co. v. Edward “Davis for $546.04 with interest from January 8,1857, and costs. Edward and David Davis were defendants in the two chancery suits other" than the one based on this forthcoming bond; and in that suit Edward Davis and his sureties in the forthcoming bond, Dawson and Clev-enger, alone were defendants. This decree was entered in all three of these cases; and as on the face of the decree it appears that the judgments of Pollard, Smith & Co. were only against the Davises, and were not against either Dawson or Clevenger, it is perfectly apparent that all the court decided in the portion of the decree above recited was, that these judgments had, in administering the assets of the Davises, priority over other judgments, and that the assets of the Davises under the control of the court were to be applied to the payment of these two judgments before any of them should be applied to the payment of any of the judgments of the complainants in these chancery suits. The court certainly in so much of this decree as I have quoted does not say, and could not probably have meant to say, that the assets arising from the renting of the lands of Dawson and Clevenger should be applied, either first or at all, to the payment ot the judgments of Pollard, Smith & Co., who had no judgments against them or any claim of any sort upon them. This decree afterwards directs Robert S. Brown, a special commissioner, to “proceed to collect the several bonds given for the sale and rental of the real estate of the defendants aforesaid, and that he apply the same as fast as collected to the satisfaction of said judgments of the said Pollard, Smith & Co.” This part of the decree, in directing the collection of the bonds given for the sale and rental of the real estate of the defendants aforesaid, is certainly wrong in not defining more carefully what bonds were meant by the bonds for the sale and rental of the real estate of the defendants aforesaid.
The appellees’ counsel insists by the defendants aforesaid was meant all the defendants to the three chancery [359]*359causes in which this decree was entered. But as the previous part of the decree shows on its face, when the exhibits made a part of it were read, that the judgments of Pollard, Smith & Co. were not against all the defendants to these chancery suits, but only against Edward Davis and Daniel Davis, it is apparent that by the defendants aforesaid was meant the defendants in the.sejudgments in favor of Pollard, Smith & Co.; for the rentals of their land alone could be applied to the payment of the judgments against them. It would be a palpable absurdity to interpret this decree as ordering the rents of the lauds of Dawson and Clevenger to be applied to the payment of judgments which the decree on its face showed were not judgments against them and which they were in no manner bound for. Robert S. Brown, not as special commissioner but as assignee of Pollard, Smith & Co., collected of Dawson the rent of his land $56.00; and in the receipt for the same states, that this decree adjudged that Pollard, Smith & Co. were entitled to these rents. This collection by the assignee of Pollard, Smith & Co. was clearly not authorized by this decree. DaWson knew that he owed them nothing; and he ought not to have paid this money to their assignee. He ought clearly to have paid it to the special commissioners of whom he rented his land or their successors. Had he done so, he would have been safe. As it is, the commissioner of the court properly rejected this as a payment on the forfeited forthcoming bond -which was due to E. & S. Frey.
The court obviously erred in deciding as it did in the decree of September 9, 1875, that the complainant in this cause was not entitled to any relief in the premises and in dismissing her bill at her costs. She was clearly eutitled to be subrogated to the rights and liens of E. & S. Frey against the real estate named in the bill of the co-surety A. G. Dawson in the forfeited forthcoming bond, she and her intestate having paid oft the whole of said forfeited forthcoming bond and costs [360]*360an<^ fbe costs of tbe chancery suit brought to enforce it; and by virtue of this subrogation she was entitled to subject this real estate to the payment of the one-half of all the moneysso paid by her or her intestate. The commissioner had correctly ascertained this amount. The whole amount so paid with interest to January 28, 1875, was $273.12, the one-half of which, or $136.56, ought to'have been by the court decreed in favor of the complainant; and if necessary, its payment should have been enforced out of the lands of the defendant A. G. Dawson.
The decree of the circuit court of September 9, 1875, must therefore be reversed and annulled; and the appellant must recover of the appellees their costs expended in prosecuting this appeal; and this court, proceeding to pronounce such decree as the court below ought to have done, is of opinion that the complainant is entitled to be subrogated to the lien on the lands of the defendant, Albert G. Dawson, which existed upon the forfeiture of the forthcoming bond executed by Edward Davis, Albert G. Dawson and Bailey Clevenger to the extent of one-half of the amount which has been paid by Bailey Clevenger, or his administratrix, on said debt or on the costs of said forthcoming bond or on the costs of the chancery suit brought to enforce the payment of the same ; and the court is further of opinion that this amount is correctly ascertained by the report of commissioner S. G. McCullough of date January 28, 1875, and is, including interest, in all $273.12 with interest from the 28th of January, 1875, till paid. It is therefore adjudged, ordfered and decreed,' that the exception to said report filed by A. G-Dawson by his-counsel be overruled, and that the said report be and the same is hereby approved, and that A. G. Dawson do pay to the complainant, Lydia A. Clevenger, administratrix of Bailey Clevenger, $136.56 with interest thereon from January 28,1875, till paid and the costs of this suit; and if the same be not paid in a reasonable time to be fixed by the circuit court of Roane county, the said court, to whom this cause is remanded, shall pro[361]*361ceed to enforce the same out of the land of said Albert G. Dawson in the bill named either by selling or renting the same as may be proper, and that the complainant recover of the defendant Edward Davis a like sum of $136.56 with interest from January 28, 1875, and upon the payment- by said Albert G. Dawson of the amount decreed against him above, the circuit court of Roane county shall render a decree in his favor for the sum so paid by him against the said Edward Davis. And this cause is remanded to the circuit court of Roane county to execute this decree, and further to proceed with this cause according to the principles laid down in the opinion filed with this decree, and according to the rules governing couts of equity.
JUDGES HaYMOND AND MOORE CONCURRED.
Judgment Reversed, Cause Remanded.