48 W. Va. 353 | W. Va. | 1900
The appeal of George T. and Lona Hyer, in the caso of B. P. Hall, admr., against George T. BEyer & Co., from the circuit court of Braxton County, although many unimportant errors are assigned, presents but two questions for the consideration of this Court.
1st. Was the property of Mrs. Hyer given, to her by her father and Inrown as lot No. 8, liable to the plaintiff’s debt by virtue of improvements put thereon by her husband ?
2d. Should her husbands one-half undivided interest in the tract of thirty-one acres of land owned by them jointly and his lot No. 44 be first subjected to the deed of trust thereon due the Baltimore Building and Loan Association, before and to the relief of her undivided interest 'in such land, she having joined in the trust deed.
The facts are as follows: “About 189G, G. T. Hyer and A. L. Morrison formed a partnership under the name of G. T. Hyer & Co., for the purpose of carrying on a mercantile business at the town of Sutton in Braxton County. They continued in business for about two years when they sold out the 15th of March, 1898. The social assets at this time were estimated to be fifteen thousand dollars and liabilities nine thousand five hundred dollars. Morrison took possession of the assets and proceeded to settle up the business. Ho paid to Hyer one thousand five hundred dollars as his share of the capital stock, and agreed to pay all the liabilities of the firm. This he was proceeding to do, and had reduced the indebtedness to less than one thousand dollars when the plaintiff becoming impatient obtained a judgment
It might possibly be insisted that the improvements put upon the property were social funds diverted from social purposes and applied to individual uses, and that a social creditor’s rights thereto were prior in equity to those of an individual creditor. There is, however, neither allegation or proof to this effect. In both bill and answer the improvements are charged and admitted to have been made by the husband from his individual property. Nor in the light of the facts could such a claim be successfully made and sustained for the reason that it clearly appears at the time of the dissolution both partners and the firm were solvent.
It is further shown and is undisputed that the debt to the Baltimore Building and Loan Association is the individual debt of George T. Hyer, and that his wife is merely his surety therefor, and joined in the trust deed on lots 44 and the thirty-one acre tract of land as such surety, and not as a principal. In the 14 Am. & En. En. Law, 701, the law is stated to be, “Wherever a person is liable to a charge which ought to be borne primarily by another person, the creditor should proceed in the first place against the person who is primarily liable or at least assign his remedy to the person secondarily liable on receiving the full amount of the demand. The creditors having two funds, equity will ¿o marshal them as to do justice between the two debtors. In accordance with this principle if a surety is compelled to pay the debt of his principle, he is equitably entitled to be subrogated to all the rights and remedies of the creditor as against the principal debtor.” Where the equitable rights of the surety may be protected without prejudicing the substantial rights of the creditors equity will require the application of the principal's property first to the satisfaction of the debt, and if possible thus entirely relieve the surety's property therefrom. Railroad Co. v. Little, 41 N. J. Eq. 519; Moore v. Topliff, 107 Ill. 341; Bank
Lot No. 44 should have first been sold to pay the Building Association lien, and if the proceeds thereof were insufficient to satisfy the same, then George T. Hyer’s interest in the thirty-one acre tract of land should have next been sold to the entire relief if possible of Mrs. Hyer’s moiety of such land. Nor have the creditors of George T. Hyer any right to insist on a different arrangement. , Their liens axe entirely limited to the interests of tneir debtor in these properties, and they can insist on nothing that he would not have the right do do in their absence. He certainly would not have the right to have the wife’s property first sold to pay his debt. Nor can his creditors do so. Standard Mercantile Co. v. Ellis and Farmers’ Transportation Co. v. Swaney, decided at this term; Snyder v. Bodkin, 37 W. Va. 355.
The decree complained of will therefore be reversed and the cause remanded for further proceedings.
Reversed.