Manford v. Firth

68 Ind. 83 | Ind. | 1879

Scott, J.

The appellant brought suit in the circuit court, against one Jennings and one Jeremiah Morton Manford and the appellees, for the purpose of having himself subrogated to the rights of said Jennings- in and to a ce.rtain judgment .which said'Jennings had previously obtained against the said- Jeremiah Morton Manford and the appellant.,

Theeqmplajnt alleged the obtaining of the judgment against the appellant and said Jeremiah Morton Manford, by said Jennings; that, the judgment was obtained on a promissory-note executed by-said Jererpiah Morton Man-ford and the appellant; t-hat the appellant was only surety on said note ;; that an execution issued .on said, judgment ;■ that the appellant paid said judgment to the sheriff, for the purpose .of procuring an assignment of the judgment to himself; that George W. Paul, the attorney of record for said Jennings, assigned the said judgment to the appellant on the order-book; that, after the date of the judgment, said Jeremiah Morton Manford inherited- certain real estate fi’om his father; that some of the appellees had obtained judgment against the said, Jeremiah Morton Manford, and others of the appellees.were attempting to procure judgment against him. .

Jennings and Jeremiah Morton Manford made default, and.judgment was rendered against them. The other defendants, appellees, severally .demurred to. the complaint, for the want.of sufficient, facts. These demurrers were sustEjinec^and .exceptions entered.

The general principle, that a surety who pays the debt of his principal has the right to be subrogated to all the rights of the creditor as they existed before the debt was paid, is well established. The substitution of the surety is not for the creditor as he stands related to the principal after the payment, but as he stood related to him before the payment. He is subrogated to such rights as the creditor then had against the principal. The debt may he assigned to the surety by the creditor, and the assignment will carry with it all securities or rights of the creditor. It is quite immaterial'whether there is in point of fact an assignment of the debt or security or not. For if, upon equitable principles, the surety is entitled to it, a court of equity will consider that as done which ought to have been doiae; and, if necessary for the protection of the surety, will deeree an assignment to be made. Lumpkin v. Mills, 4 Ga. 343; Sublett v. McKinney, 19 Tex. 438; Brandt Suretyship, etc., 281, sec. 199; Morrison v. Page, 9 Dana, 428.

Jennings, on receiving the amount due on Ms judgment from the appellant, had the right to substitute the appellant as the judgment creditor in equity — the subrogation being, as it doubtless was, one. of the considerations for the payment of the amount due on the judgment.

But it is contended by counsel that the assignment having been made by an attorney was void, because the attorney had no authority to make the assignment. The complaint does not show that he had authority to assign the judgment. The assignment, it it were void as a legal assignment for want o#authority, was certainly a good assignment in equity, and placed the record in such condition that no one could by any possibility be induced to believe that it was satisfied; for the' very fact appeared otherwise upon the face of the record itself. The appellant has the right to have the question of suretyship tried, and if it be found that he was, in point of fact, the surety for the said Jeremiah Morton Manford, and that he has paid said judgment, as alleged in the complaint, then it will he his right to have himself substituted for Jennings as judgment creditor in said judgment, and be subrogated to all the rights of Jennings in and to the judgment, anterior to,, and subsisting at the time of the payment by him of the amount due on said judgment. • .

The demurrer’s.to the complaint should have been.overruled.

The judgment is reversed, at the costs of the appellees ; cause remanded, with instructions to the circuit court to overrule the demurrers to the complaint, and for 'further proceedings in accordance with this-opinion.