59 Mo. App. 430 | Mo. Ct. App. | 1894
An understanding of this controversy may be had by a rehearsal of the facts set out in the statements of counsel: In September, 1888, Dr. M.'M. Fisher borrowed of 'the Columbia Building and Loan Association $3,000, for which he executed his note signed by the plaintiff, Eliza Fisher, his wife, and O. P. Smith, her trustee, as security; The note was further secured by a deed of trust' executed by Mrs. Fisher and her trustee, Smith, on her residence which was her sole and separate property. In February, 1891, Dr. Fisher died insolvent, and 'in April, 1891,
On a hearing of this issue in June 1892, the court, in effect, held (adversely to the claim of Branham) that the debt was that of Dr. Fisher and not his wife; but, inasmuch as there appeared indorsed on the note a credit of $1,600, paid since the claim was allowed, the court entered its judgment restraining the Building and Loan Association from participating in the distribution of Dr. Fisher’s estate, except on account of the
On April 19, 1893, Mrs. Fisher instituted this present action, alleging her suretyship on the building and loan note, her payment of $1,600, and the insolvency of the Fisher estate, and asking to be subrogated pro tanto to the extent of her $1,600 payment to the rights of the Building and Loan Association against the Fisher estate. The administrator of Dr. Fisher answered by way of general denial; the Building and Loan Association answered, admitting the truth of the allegations of the petition, and J. S. Branham, the only active defendant in the case, answered, denying the suretyship of Mrs. Fisher, alleging that she was the real debtor and setting up a former adjudication.
On a trial in the circuit court the facts were found as alleged in plaintiff’s petition, a judgment was entered as therein prayed, and from this defendant Branham has appealed.
I. From the foregoing statement, it will be seen that this is a suit by an alleged surety claiming the right to be subrogated pro tanto to the securities held by the creditor on account of a partial payment made by such surety on the principal debt. Or, to be more specific, the plaintiff, Mrs. Fisher, having paid $1,600 to the Building and Loan Association on account of its claim for a larger amount against Dr. Fisher for whom Mrs. Fisher was surety, seeks by this action to - be subrogated to that extent to the rights of the association against the estate of said Dr. Fisher. In the disposition of this áppeal, we shall assume the facts to be as they were found by the trial judge, since an examination of the record shows that such finding is well sustained by the evidence. He had the witnesses before him, and was in a better situation to pass upon
The case then is this: The Building and Loan Association held a note (already proved up and allowed in the probate court) for about $2,400 against the estate of Dr. Fisher. The plaintiff, Mrs. Fisher, was surety on this note, and as such she paid to the association $1,600. She claims, by reason thereof, the right to stand in the shoes of the association and partake of the dividends from the estate in proportion to the amount she had so paid. The general principle is well understood, “that a surety, on paying the debt of his principal, is entitled to be subrogated to all securities, funds, liens, and equities, which the creditor holds against the principal debtor, or as a means of enforcing payment from him.” Sheldon on Subrogation, sec. 86. The same learned author further says, ‘ ‘that it is in the nature of a purchase by the surety from the creditor. It operates in equity as an assignment of the debt and the securities to the surety.” Ib. sec. 87.
But, in opposition to the right here, it is earnestly insisted that the plaintiff can not be subrogated to any' of the rights or securities of the Building Association held by it against the Fisher estate for the reason that she has not paid the entire debt—that the right of subrogation does not exist until the surety shall have paid or satisfied the whole debt.
The .principle here contended for is, in the abstract, correct. As between the creditor and surety, the latter has no right upon a partial payment of the debt to come in and share the securities with the creditor. The creditor has the right to insist upon retaining all rights and means of idemnity until the whole of his claim against the principal debtor shall have been satisfied. Ames v. Huse, 55 Mo. App. 422. But this is a matter
II. Plaintiff can not be barred of her rights because of any alleged delay in presenting her claim to the probate court for allowance. It was unnecessary to present the claim of the building association the second time. It had already been allowed; and, by virtue of plaintiff’s subsequent payment of a portion thereof, she became entitled (with the assent of the association, who was the principal creditor) to partake of her proportionate share of the judgment against the Eisher estate.
III. Neither is the plaintiff barred of the assertion of her rights by the former suit and judgment in Branham v. Building Association et al. It is true that in that litigation, Mrs. Eisher did set up in her answer in reply to the allegations of the petition, that she was not principal debtor in the matter of the loan by the associátion, that she was only a surety for Dr. Eisher. This was indeed the principal, if not the sole, issue in that suit; and the holding of the court was, as to that
The judgment is for the right party and will be affirmed.
