9 Ala. 463 | Ala. | 1846
It may be conceded, notwithstanding some adjudications to the contrary, that if a surety discharges a judgment rendered against himself and principal jointly, the judgment is satisfied, and its legal efficacy destroyed. [1 Turn. & Russ. Rep. 230; 4 Russ. Rep. 277; 2 Mad. R. 464; 3 Mylne & K. Rep. 183; Foster v. The Athenæum, 3 Ala. Rep. 302, and cases there cited.] But in the case at bar, several judgments were rendered against the maker and indorser of notes, and the judgments against the latter were pa¿d by himself; the question is, whether, by these payments, the judgment against the maker of the notes became functus officio; or Vas their vitality suspended, subject to be resuscitated whenever the indorser should seek their enforcement, with the view of reimbursing himself?
It was said by Lori? Eldon, in the case of Craythorne v. Swinburne, 14 Ves. Rep. 162, that “ a surety is entitled to every remedy which the creditor has against the principal debtor, to enforce every security, and all means of payment ; to stand in the place of the creditor, not only through the medium of contract, but even by means of securities entered into without his knowledge, having a right to have those securities transferred to him, though there was no stipulation for it; and to avail himself of all those securities against the debtor.” This very just and comprehensive statement of the law has been often reiterated, not only by the text writers, but in adjudged cases. [2 Brock. Rep. 159, 252; 1 Hill’s Eq. Rep. 275; 3 Sumner’s Rep. 410; Pitman on Prin. & Surety, 113; Cullum v. Emanuel & Gaines, 1 Ala. R. 23,
In Watts v. Kinney, 3 Leigh’s Rep. 272, the right of subrogation has perhaps been carried as far as in any other case that has fallen under our notice. There, a judgment was recovered against the principal and his sureties, but no elegit, or other execution, was sued out within the year; the sureties satisfied the judgment. It was held, that the sureties had a right to be substituted in equity to the benefit of the lien of the creditor’s judgment, upon the lands of the principal, in preference to a foreign attachment, sued out by another creditor,-after the judgment was obtained. Favorable as this case is, to the interest of sureties, it is very fully sustained by Worthington v. Ferguson, 4 Har. & Johns. Rep. 522, and Creager v. Bengle, 5 Id. 234.]
In Clason v. Morris, 10 Johns. 526, certain persons as sureties, indorsed the note of their principal; suit was brought against the principal by the indorsee, who recovered a judgment, and afterwards sued the indorsers and obtained a judg
It has been held, that where one person gives his own bond for duties on goods imported by another, and afterwards discharges the same, although the obligor cannot be placed in the condition of the United States in a claim against the importer, under the act of Congress, yet upon general principles of equity, the obligor will be substituted in the place of the United States as a creditor, and entitled to the same preference in respect to other persons. [Enders v. Brune, 4 Rand. Rep. 438.]
We think it clearly inferable from the principles stated, that an indorser, by satisfying a judgment against himself, does not necessarily destroy one that has been rendered against the maker of the same note. The indorsement was in itself a substantive contract, consequential to the making of the note ; the judgments were several, and the indorser, as between himself and the maker, liable only, in the event that the latter was unable to pay. True, the holder of indorsed paper, though he recover several judgments against the parties to it, is entitled to but one satisfaction, yet it does not follow, that if the indorser satisfy a judgment against himself, that he is not entitled to enforce in the name of the holder judgments obtained by the latter against the previous parties, for the purpose of reimbursing himself. Perhaps in such case, the right of substitution could only be made available in equity, as a court of law might not, consistently with its principles, look into the equities of the parties, and if an exe-. cution were issued on the judgment against the maker, would probably quash it, upon the allegation that the plaintiff had received one satisfaction of the indorser.
Upon the payment of the judgment by the indorser, the maker would not be entitled to receive the note; that, according to our practice, would remain in the files of the court
To show that a payment by the indorser, does not necessarily annul the judgment against the maker, the cases of Clason v. Morris, and Brahan & Atwood v. Ragland, et al. supra, are conclusive authority. There it was held allowable to continue its vitality, by an arrangement between the indorsee and indorser, by which the former assigned it to the latter.
We deduce from this course of reasoning, the right of the indorser, upon paying a judgment recovered against himself, to^be substituted in equity to a judgment in the name of the same plaintiff against the maker of the paper. And if, in such case, an execution has been issued and returned “no property found,” he may go into Chancery to subject the equitable estate of the defendant, to the satisfaction of the judgment. See Roper v. McCook and another, 7 Ala. Rep. 318. For the same purpose he may resort to equity to cause conveyances of real property to be set aside, which the defendant has made, or caused to be made, in fraud of his creditors.
In respect then to the two notes on which judgment was recovered, the bill makes out a proper case for equitable interposition. Whether in view of the insolvency of the defendant at law, the jurisdiction being thus far unquestionable, it would not be competent if there should be an excess arising from the sale of property found liable to the judgments, to direct its appropriation to the payment of the note on which no suit has been brought, we need not now consider.
It results from what has been said, that the decree dismissing the bill must be reversed, and the cause remanded.
