46 Mo. 301 | Mo. | 1870
delivered the opinion of the court.
The plaintiff held three notes against a third party, maturing at successive- periods, which were secured by a deed of-truSt upon real-estate. - -After -the notes had all matured, a sale was had under the deed, and the entire net proceeds of the property sold were applied upon the notes last- maturing, nothing being applied upon the-first. -The defendant was surety upon ■ the last mentioned note, and this suit is brought to recover from him the sum due upon it.
The defendant’s answer alleges, in -substance, that the note sued on has been satisfied and paid from the proceeds of the déed of trust salo. The ground-assumed is that the law will apply the proceeds realized from a mortgage or deed of trust to the extin-
It is urged, hoAvever, that if the defendant had paid the surety note prior to the deed of trust sale, he Avould have had the right to be subrogated, and to have his money reimbursed to him first out of the mortgaged property. The idea seems to be that, in the condition of things supposed, the defendant Avould have occupied the position of an independent holder of the note first maturing. The doctrine of subrogation or substitution has no application to the case. The creditor has not been paid, and, until he is either paid or secured, the surety has no fight to be substituted in his place. The right of substitution is founded upon considerations of an equitable character, and does not of
On the trial of the case in the Circuit Court, the law was declared to be that the plaintiff could recover nothing upon'the note in suit, if it appeared .from the evidence that the plaintiff had received from the net proceeds of the deed of. trust a sum sufficient to pay it, principal and interest. We do not regard that as a correct statement of the law of the case. It was clearly the right of the plaintiff to have sued upon the note at once upon its maturity, and to have collected the.whole of it from the defendant. Had he done so the defendant would have had no legal grounds of complaint. It would have been the mere assertion of the plaintiff’s legal rights. He has forfeited no rights, legal or equitable, by pursuing a course more forbearing and indulgent.
The judgment will be reversed and the cause remanded.