30 Ga. App. 319 | Ga. Ct. App. | 1923
1. “A surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor, and, in a controversy with other creditors, ranks in dignity the same as the creditor whose claim he paid. Civil Code (1910), § 3567. “He is entitled, also, to be substituted in .place of the creditor as to all securities held by him. for the payment of the debt.” § 3568. The “ doctrine of subrogation is not founded on contract, but has its origin in a sense of natural justice. So soon as a surety pays the debt of the principal debtor, equity subrogates him to the place of the creditor, and gives him every right, lien, and security to which the creditor could have resorted for the payment of his debt.” American Nat. Bank v. Fidelity Co., 129 Ga. 126, 131 (58 S. E. 867, 12 Ann. Cas. 666). “ This equitable principle of the surety’s subrogation was incorporated into the code. Civil Code . . [of 1910, §§ 3567, 3568]. And since the code, as soon as the debt is paid by the surety, he is subrogated to all the rights of the creditor by vigor of the law, and not dependent upon any judicial proceeding. . . . Since the code a surety paying the debt of his principal not only could maintain a suit against his principal upon the implied promise raised by the law that the principal would indemnify the surety in case he paid the debt, but, being legally subrogated to the rights of the creditor, he may sue on the original indebtedness. In either case the action is for the enforcement of
2. “ The general rule is that a person is not entitled to be subrogated to a creditor’s securities until the claim of the creditor against the debtor to secure which the securities were given has been paid in full; the creditor in the meantime is left in control of the debt, and all the remedies for collection. A pro tanto assignment or subrogation will not be allowed. The reason for this rule is that if the surety, upon making a partial payment, became entitled to subrogation pro tanto, and thereby became entitled to the position of an assignee of the property to the extent of such payment, it would operate to place such surety upon a footing of equality with the holders of the unpaid part of the debt, and, in case the property was insufficient to pay the remainder of the debt for which the guarantor was bound, the loss would logically fall proportionately upon the creditor and upon the surety.” 25 Buling Case Law, 1318 (§ 6); Wilkins v. Gibson, 113 Ga. 31 (3 a) (38 S. E. 374, 84 Am. St. Rep. 204); Carter v. Neal, 24 Ga. 346 (6) (71 Am. Dec. 136). “The rule that the debt must be paid in full has-in apparently every instance been invoked for the protection of the creditor, and never to defeat contract obligations in the interest of the debtor alone.” 25 B. C. L. 1319. Thus, where the remedy sought by the surety against the principal debtor is not the apportionment or application for his benefit of securities in the hands of the creditor, but the right of subrogation is invoked merely for the purpose .of recovering partial payments which have fallen due in installments, and which the principal debtor, in violation of his agreement, has failed and refused to pay, but which the surety has' fully, discharged, the surety can not be compelled to await the maturity of the principal’s entire indebtedness before thus proceeding against him for the installments actually paid in his behalf. Nettleton v. Ramsey County, 54 Minn. 395 (56 N. W. 128, 40 Am. St. Rep. 342). Where, without affecting or disturbing any securities held by the creditor, the principal debtor is thus merely required to reim
Judgment reversed.
