14 Barb. 481 | N.Y. Sup. Ct. | 1851
The case shows that Lawyer paid or furnished the means with which the respondent satisfied the judgment held by Mann, and that an assignment was taken of the same, for his benefit. The sum of $300 was originally borrowed from Mann by the deceased, for which he held the joint note of the decedent and Lawyer. No part of the money went to the latter. In March, 1841, a judgment was entered for the debt, on the joint bond and warrant of attorney of the intestate and Lawyer. Subsequently, and in the lifetime of the deceased, the judgment was paid. We have, therefore, the case of a judgment against a principal debtor and his surety; by which judgment, so far as the creditor was concerned, both became principal debtors. The surety pays the judgment; and the questions arise, whether both in law and equity the judgment is to be regarded as extinguished; and the assignment, having no subsisting obligation in the hands of the surety, a mere nullity; or whether the surety has, in equity, the right as against the principal debtor, to be substituted for the creditor, and to have an assignment for his benefit and protection, not only of any independent collateral securities, but also of the original debt and the judgment by which it is evidenced. The surrogate could properly entertain these questions; for on settling the accounts of executors and administrators, he may adjudicate and pass upon the claims of creditors legally or equitably due. (6 Paige, 20. 7 Id. 591.)
At law, as a general principle, the payment of a judgment, by
But in the view of a court acting on the principles of enlarged equity, should the judgment be held to be extinguished as against the' principal debtor, when payment is made by the surety 1 It is but naked equity that a person bound for another as a mere surety, and paying off the debt, should be reimbursed by his principal, and should be put in the place of the creditor, and be entitled to every remedy which he has to enforce every security, and all means of payment. Rules, merely technical, should not be permitted to interfere, contrary to the intentions of the parties, as well as the demands of justice, to shield the debtor from the moral obligation to reimburse the party bound for him, and paying his debt. By the civil law, payment by the surety did not operate to extinguish the original debt; but it held the transaction between the surety and the creditor, according to the presumed intention of the parties, to be not so much a payment as a sale of the debt. (Stor. Eq. Jut. § 499, and note.) “ It is not wonderful,” says Judge Story, “that courts of equity, with this enlarged doctrine in view, which is in entire conformity to the intention of the parties, as well as the demands of justice, should have struggled to adopt it into the equity jurisprudence of England. The opposing doctrine is founded more on technical rules than on any solid reasoning, founded in general equity.” It is a general and well established principle in the English courts of equity, in
Parker, Harris and Wright, Justices.]
There is no force in the point that the surrogate should have decreed all the debts against the decedent to be paid proportion-ably, without reference to their dignity or priority of right at law. The general doctrine in chancery, that equality is equity, and that assets are to be distributed equally, has no application to a case where the statute commands a preference to be given. (2 R. S. 87, § 29, sub. 3.) An act of the legislature is as binding in equity as at law.
In the progress of the hearing, an objection was raised against the surrogate taking further cognizance of the respondent’s claim, on the ground that the surrogate was related to Watson’s wife. No proof was offered as to the affinity, and the objection seems, after some conversation, to have been abandoned.
The decree of the surrogate should be affirmed.