72 Ind. 553 | Ind. | 1880
— The only question presented for the decision of this court, by the record of this cause and the error assigned thereon, is this: Does the appellant’s complaint state facts sufficient to constitute a cause of action against the appellee, Julius C. Sharp?
The suit was brought by the appellant against the appellee, Sharp, and Jacob Eudy, Susan Eudy, Ezra H. Eudy and John W. Taylor, as defendants. The appellee separately demurred to the complaint for the alleged insufficiency of facts therein to constitute a cause of action against him, which demurrer was sustained by the court, and to this ruling the appellant excepted. Thereupon the court rendered judgment that, as to the appellee, the appellant should take nothing by his suit, and against the latter for the appellee’s costs. It is from this separate judgment that this appeal is prosecuted. What became of the suit as against the other defendants, the record before this court does not disclose.
In his complaint the appellant alleged, in substance, that, on the 3d day of November, 1876, the appellee, Sharp, sold and conveyed to the defendant Jacob Eudy the real estate in Hamilton comity, Indiana, particularly described in said complaint; that, on the day last named, for a part of the purchase-money of said real estate, to wit, three hundred dollars, the said Jacob Eudy gave his note, with the appellant and said Ezra H. Eudy as his sureties therein, due in fifty-eight days after the date thereof; that, on the sama
We regret that the appellee and his. counsel have failed to furnish this court with any brief of this cause, or to inform us of the grounds of the decision of the circuit court, of which the appellant complains, or to sustain that decision, if it can be done, by argument and authority. It is -hardly fair, either to the circuit court or to this court, for the appellee and his counsel to submit the judgment and rulings of the trial court to our decision without any information as to the grounds thereof, or any argument or citation of authorities in their support.
We are of the opinion that the court erred in sustaining the appellee’s demurrer to the appellant’s complaint in this ■cause. The appellant had become, by reason of his payment of the judgment rendered on the note first described in the complaint, as the surety of said Jacob Rudy thereon, clearly entitled to be subrogated to all the rights of the appellee, as the payee of the note, in the mortgage executed to him to secure the payment of such note. In Eddy v. Traver, 6 Paige, 521, it was said: “It is an established principle of equity that sureties, or those who stand in the situation of sureties for those who pay a debt for them, are entitled to stand in the place of the creditor, or to be subrogated to all his rights as to any fund, lien or equity
‘ ‘Moreover, as soon as the surety has paid the debt, an equity arises in his favor to have all the securities, original and collateral, which the creditor holds against the person or property of the principal debtor, transferred to him, and. to avail himself of them as fully as the creditor could have-done : for the purpose of obtaining indemnity from the-principal, he is considered as at once subrogated to all the rights, remedies and securities of the creditor; as substituted in the place of the creditor, and entitled to enforce all his liens, priorities and means of payment, as against the principal, and to have the benefit even of securities that were given without his knowledge. * * * ‘This right of the surety,’ says Chancellor Kent, in Hayes v. Ward, 4 Johns. Ch. 123, 130, ‘stands not upon contract, but upon the same principle of natural justice, upon which one surety is entitled to contribution from another:’ and the same thing is said in 1 Comst. 599, 600. Payment by one who stands in the relation of a surety, although it may extinguish the remedy, or discharge the security, as respects the creditor, has not that effect as between the principad debtor and the surety. As between them, it is in the nature of a purchase by the surety from the debtor; it operates [as] an assignment in equity of the debt and of all legal proceedings upon it, and gives a right in equity to call for an assignment of all securities; and, in favor of the surety, the debt and all its obligations and incidents, are considered as still subsisting.” And see. the authorities there cited.
One other point is discussed by the appellant’s counsel, and that is in regard to the right of priority of the two notes described in the complaint, as between themselves. It will be observed from our summary of the complaint, that the two notes were of even date, but that the note on which the appellant was surety was payable fifty-eight days after date, while the other note did not become due for more than a year after its date. The rule in such a case was thus declared by this court, in The State Bank v. Tweedy, 8 Blackf. 447: “The different instalments in a mortgage, when secured by corresponding notes, may be regarded as so many successive mortgages, each having priority according to its time of becoming payable. ’ ’ This rule has since been approved and acted upon by this court whenever such a case has been presented. Minor v. Hill, 58 Ind. 176; The Peoples Savings Bank v. Finney, 63 Ind. 460; Doss v. Ditmars, 70 Ind. 451.
Upon the whole case, we think that the appellant’s complaint stated facts sufficient to constitute a cause of action against the appellee.
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Petition for a rehearing overruled.