Parr, Nolen & Co. v. A. L. & J. C. Fumbanks. self, to allow actual payments made on that debt, so that he shall only share in the common fund to the extent of what is actually due him. The only difference between that case and this is, that he has the means of payment placed at his disposal by the other property appropriated specifically to this purpose, and the court but enforces its sale and appropriation, as agreed between the parties. If he had enforced the securities in his hands, over which he has sole control according to the terms of the deeds, and realized the money from the sale, he would be compelled to reduce his debt by the sum so received before receiving a pro rata of the common fund. If compelled by the court to do what he ought to have done, and he receives the full benefit of the securities he has taken, he cannot complain nor be injured, and his cocreditors will be benefited. We therefore hold, that complainants have the right to have the personalty conveyed in the subsequent deeds of trust sold, the deeds enforced, and the proceeds applied upon the debt of defendants as a credit, before they can go on the common fund under the first deed of trust. The sale of land under the first deed of trust, however, nced not be delayed, if it shall be seen that it will take all the property in all the deeds to pay the debts secured, as the purpose is simply to have the proceeds of the property conveyed under the second deed of deed of trust appropriated to respondents' debts, before appropriation of the fund arising from a sale of the land among the common creditors secured by the first deed, so that A. L. & J. C. Fumbanks Parr, Nolen & Co. v. A. L. & J. C. Fumbanks. shall only come in on that fund for the balance due them after the appropriation of the proceeds of the other securities. Their debt will also be credited with any sums paid on it by Fowlkes, or in any way realized by them. In administering the equities arising under these trusts, it is the duty of the court, so to decree as shall best serve the rights of all the parties, the debtor as well as the creditor. We think, with that view, the court should, in making the sale of the land conveyed, sell the separate tracts, selling first the tract on which Fowlkes and family do not reside, and then, if necessary, the other tract, or so much as may be necessary to pay balance found due the creditors. In selling this last or residence tract, the court may, if desired by Fowlkes and wife, first lay off the homestead, and then the tract may be offered with the homestead reserved, and if this with remainder, after homestead expires, will pay balance of debts secured by first deed, after the other securities have been applied, to A. L. & J. C. Fumbanks' debt, then the homestead shall be preserved; but if not, and the entire interest will be necessary to pay the debts charged, then the tract will be sold not subject to homestead, or including the homestead right, as extinguished for reasons hereinafter given. As to the effect of the second conveyance, by husband and wife, in trust to secure the debt of respondents, we need but say, that under the case of Crook v. Lunsford, 2 Lea, 238, the conveyance by an absolute deed and surrender of possession, by husband and Parr, Nolen & Co. v. A. L. & J. C. Fumbanks. wife, is an extinguishment of the homestead right, and so the first assignee of the land was held to have the land free from the homestead right. This being so, although the second deed in this case is not an absolute title in equity, but only a security for the debt, the equitable title still being in the conveyor, and the possession not surrendered, would not be per se an extinguishment of the homestead as by an abandonment or absolute sale. Nevertheless, as complainants would be entitled to have this deed enforced, and whatever right the trustee obtained sold, and the purchaser would be entitled to possession, as between him and Fowlkes and wife and the trustee, the result would be, that the trust being compelled to be executed, the homestead would then be extinguished, and thus the purchaser under the first deed would get the benefit of the extinguishment. It would be a useless expense and form to make such a sale, by which the purchaser would get nothing. It seems somewhat contradictory, at first thought, that a party claiming under a deed from the husband alone, which did not carry the homestead, should get the benefit of that homestead by a conveyance subsequently made. of the homestead by husband and wife, and the conveyee get nothing. But this is probably the only logical result of our cases, which go on the theory that the homestead is not an estate in the land, but a mere right of occupancy or exemption, and, when voluntarily abandoned, or parted with as required by law, ceases to exist. This being so, a party having a prior conveyance of the land subject to homestead, State for use, etc., v. Keller. would necessarily hold under that title free from the homestead, subsequently abandoned or conveyed, or released by the wife joining in a deed with her husband. The enforcement of this second deed of trust necessarily extinguishes the homestead right conveyed by Fowlkes and wife, and its enforcement is the right of the other parties secured in the first deed. The result is the chancellor's decree, dismissing complainants' bill, is reversed; the costs of this court to be paid by complainants, the costs below as adjudged by the chancellor. The case will be remanded to be proceeded in under this opinion. STATE OF TENNESSEE for use of Henning's heirs v. J. 1. CHANCERY JURISDICTION. County Surveyor. Action on official bond. Chancery court has jurisdiction of an action against a county surveyor, on his official bond, for failure properly to survey land sold by the acre; and where such bill is brought by the vendor, against whom the mistake was made, he may recover the fees paid by him for the erroneous survey, any costs incurred in the assertion of his rights against the vendee, and if the excess beyond the number of acres intended to have been sold has been lost, semble, he may recover, also, the value of such excess. 2. PLEADING. Amendment. Limitation. A misdescription of the suit in which the erroneous survey was made is immaterial, and where the bill containing such misdescription was brought within six years from the survey, an amendment properly giving the title and purpose of the suit, made more than six years after the survey, relates to the filing of the bill, and the action is not barred. 3. SALE BY ACRE. State for use, etc., v. Keller. Mistake. Excess. Where in a sale by the acre there is, by mistake, a substantial surplus above that intended to be bought and sold, the purchaser will be compelled to pay for or return such surplus. 4. SAME. Same. Same, Chancery pleading. When there is such a surplus in land sold by judicial sale, the remedy is by an original bill, and not by a bill of review, after confirmation and complete vestiture of title, and after confirmation but before vestiture of title, by a supplemental bill. 5. SAME. Same. Liability of surveyor. There can be no recovery against the surveyor making such mista ke, for the value of such surplus, when such surplus can be recovered from the purchaser. FROM LAUDERDALE. Appeal from the Chancery Court at Ripley. H. J. LIVINGSTON, Ch. W. STRONG and W. E. LYNN for complainants. STEELE & STEELE for defendants. FREEMAN, J., delivered the opinion of the court. This bill is filed to hold Keller, as county surveyor of Lauderdale county, and his sureties responsible for a failure to properly survey a tract of land, in which the widow's dower was ordered to be laid off by three commissioners, and balance divided and sold for partition of the proceeds among the heirs of a deceased party, the proceeding being had in the county court. The clerk proceeded to have the land surveyed by Keller into six tracts, and sold the tracts in accord with said survey. One tract, represented by said survey to contain 125 acres, was sold, as charged in the bill, by the acre to J. T. Caine at $22.07. This tract, however, turns out, as is conceded, to is conceded, to contain |