86 W. Va. 86 | W. Va. | 1920
The defendant J. O. McDermitt was sheriff of Mason county for the four years ending on the 31st of December, 1908, and the plaintiff Ashbell Hughes was one of the sureties on his official bond as such sheriff, as well as one of the his deputies, during his term of office. After the close of McDermitt’s term of office lie was indebted to the county in considerable sums of money, and, not paying the same upon demand, suit was brought against him and his sureties, and a judgment recovéred against them for more than nineteen thousand dollars. It seems that the plaintiff Hughes was indebted to McDermitt because of funds placed in his hands as deputy sheriff which had not been accounted for, and in a suit by McDermitt against Hughes and the sureties on his bond as deputy sheriff a judgment was rendered for the sum
It seems to be very well established that where one is indebted to an insolvent person, and is also liable for a debt of such insolvent person as surety or otherwise, he may in equity enjoin the collection of such indebtedness to such insolvent person until he is indemnified against'liability as such surety, and in case his liability as surety has been ascertained and he has discharged the same, as is the case here, he is entitled in equity to have set off against his indebtedness to such insolvent person whatever amount he has been compelled to pay as such surety. Mattingly v. Sutton, 19 W. Va. 19; Bowling v. Bluefield-Graham Fair Association, 84 W. Va. 41, 99 S. E. 184; Williams v. Helme, 1 Devereux’s Equity, 151, 18 Am. Dec. 580; Tillis v. Folmar, 117 Am. St. Rep. 31 and monographic note at page 38; Scott v. Armstrong, 146 U. S. 499; Brant on Suretyship & Guaranty, § 249;
Our conclusion, therefore, is to reverse the decree of the circuit court of Mason county and remand the cause in order that the equities may be properly adjusted between the parties, and should it turn out that the amount paid by Hughes on the judgment of the county court against MeDermitt is sufficient to offset the balance remaining unpaid on the judgment of MeDer-mitt against him, applying the payments as of the date they were made, the injunction should be perpetuated as to the whole of said judgment. If, on the other hand, these payments so applied do not fully discharge the judgment in favor of MeDermitt against Hughes, it will be offset to the extent that such payments were made, and MeDermitt allowed to enforce the execution for any balance; or if the payments made by Hughes, applied as aforesaid, more than pay off the balance remaining unpaid on-the judgment in favor of MeDermitt against him, he will be entitled to have the collection of the judgment enjoined in toto
Reversed and remanded.