107 Ill. 241 | Ill. | 1883
delivered the opinion of the Court:
The vital question of fact upon which, as we conceive, the decision must turn, is, whether upon the dissolution of the firm of Bliss, Moore & Co., on January 1, 1875, and the formation of the new firm of Samuel Bliss & Co., the latter firm assumed the debts of the former firm. Upon this the parties are not agreed. Moore testifies there was such an assumption,—Bliss and Topliff testify there was not.
The question as to what the contract between Moore, Bliss and Topliff was, upon their dissolution, arose before this court on a former occasion, in the case of Kellogg v. Moore, 97 Ill. 282. The assets of Samuel Bliss & Co. had been transferred to Kellogg by the bankrupt court, and Kellogg brought suit against Moore for an accounting in regard to the affairs of Bliss, Moore & Co. Bliss and Topliff both gave testimony in that former case, and the same letters forming the basis of the dissolution were in evidence in that case as in this. We were then of opinion that the weight of evidence showed there was a final accounting and settlement between the parties about the first of January, 1875, upon a basis which had already been agreed upon through their written correspondence, and that at that time Moore made a complete sale and transfer to Bliss and Topliff, forming the new firm of Samuel Bliss & Co., of his entire interest in the partnership effects and business of Bliss, Moore & Co., including the notes and accounts, and that under said settlement these notes now in question should have been paid by Bliss and Topliff. As respects the additional testimony which has been brought into the present case, we think it materially strengthens our former view. In the former ease Moore did not testify. In the present case he does testify, and states that Bliss and Topliff agreed to assume and pay the debts of Bliss, Moore & Co. And there is the further additional evidence in the present case of the sworn admissions of Bliss and Topliff, made by them in their bankruptcy proceedings, that the notes in question should be paid by the firm of Samuel Bliss & Co., it being so expressly stated in their partnership schedule of the creditors of the firm of Samuel Bliss & Co., filed with their petition in bankruptcy, and the holders of these notes were scheduled as creditors of that firm. Bliss and Topliff also, each of them, filed'with their petition their individual schedules of assets and liabilities, and names of parties to whom they owed individual debts; but in the individual schedule of William B. Topliff there is no mention of any indebtedness due by him upon said notes, except as contingent liability thereon as indorser, he stating in such schedule that the debt was the debt of Samuel Bliss & Co. These three sisters proved their notes in bankruptcy against the estate of Samuel Bliss & Co., and received their dividends out of the assets of that estate, and they also state, in their proofs then made, that Samuel Bliss & Co. had assumed and agreed to pay said notes.
Without further discussion of the testimony, we will say that the evidence in the present record not only leads us to the same conclusion we arrived at before, but it strengthens our belief in the correctness of that conclusion, that the firm, of Samuel Bliss & Co. assumed the debts of the firm of Bliss, Moore & Co. We take this, then, to be an established fact in the case. Upon that state of fact the relation of Moore,' and Bliss, and Topliff, as between themselves, with respect to these notes, would be, that Bliss and Topliff became the principal debtors, and Moore but a surety.
It is a well settled principle in equity, that a surety, upon paying the debt to the principal, is entitled to be substituted in the place of the creditor as to all securities held by the latter for the debt, and to have the same benefit that he would have therein. (1 Story’s Eq. Jur. sec. 327; Warner v. Beardsley, 8 Wend. 199; Lewis v. Palmer, 28 N. Y. 275; Marsh v. Pike, 1 Sandf. Ch. 210, S. C; 10 Paige, 595.) Not denying this rule, appellees’ counsel insists that the right to bring a bill for subrogation does not exist until the creditor has been paid by the surety. It has been held that where a mortgage has been given as an indemnity to the surety, the mortgage could not be foreclosed and the money received by the surety until the creditor had been paid, as in Darst v. Bates, 51 Ill. 439, and Conwell v. McCowan, 53 id. 363, cited by appellees’ counsel. But the question here is different, and is, whether a bill will lie to be subrogated to the security upon payment of the money to the creditor.
The right of the creditor to his money, and the right of the surety to the securities held by the creditor, are reciprocal and concurrent. In the case of such mutual rights and duties it is common for courts of chancery, by their decrees, to prescribe the rights of parties upon the performance of some duty in the future. As in ease of bills for redemption, it is not required that the redemption money shall be paid before the bill can be filed, but the mortgagor offers to pay the amount which may be found due, and the decree provides that in case of payment of such amount within a time limited, then the mortgage shall be null and void. (Dwen v. Blake, 44 Ill. 140.) So in case of bills for specific performance, the court does not require that the purchase money shall be paid before a bill can be filed to enforce the execution of a deed, but all that is required is, that the complainant should offer to do equity, and to pay the money upon receiving the property to which he is by law entitled upon payment of the debt. Webster v. French, 11 Ill. 275; Barnard v. Cushman, 35 id. 452 ; Snyder v. Spaulding, 57 id. 488.
A surety, after the debt has become due, may, without making payment himself, come into a court of equity and compel the principal to pay the debt. (Hale v. Wetmore, 4 Ohio St. 600; Tankersley v. Anderson, 4 Dessau. Eq. 44; City of Keokuk v. Love, 31 Iowa, 199.) In 2 American Lead. Cases, 412, the rule is stated thus: “The surety stands in the position of an -equitable assignee, and may use the remedies of the creditor, at his own risk and cost. He may accordingly file a bill against the principal to compel him to pay the debt at maturity, and make the creditor a party, because his interests are at stake, and in order that he may be at hand to receive the money.”
As between themselves, here, Topliff is the principal debtor, and Moore the surety. Judgment has been obtained by the creditor against Moore, the surety, and its collection by execution is being proceeded with. As between themselves, Topliff ought to pay the debt, and ■ not Moore, it being Topliff’s own debt. Topliff has given a mortgage on his property to the creditor to secure the payment of the debt. Moore asks but to have this property, which Topliff has pledged for the payment of this debt, to be so applied. He is not seeking to appropriate to himself this property without payment of the debt, but only asks that upon payment by himself of the debt he shall have the benefit of this mortgage security, and in order that there may be complete relief in the same case, and because all the parties in interest are before the court, he asks that the mortgaged premises be sold, and he be indemnified out of the proceeds for the payment made to the creditors. Such relief would save circuity of action, and avoid multiplying suits. As between Topliff and Moore, the equity of the relief asked seems plain. It would be but requiring, on the part of Topliff, performance of his promise to pay the debt, and the appropriation therefor of property which he had pledged for the purpose. As respects the creditors, there could be no prejudice to any rights of theirs. It is not sought to delay them in any way, but they may proceed without hindrance in the collection of their judgment. All that is asked as respects them is, .that-upon, payment of the judgment to them they shall transfer the mortgage security they hold. Be.ing in chancery, where costs are, by the statute, in the discretion of the court, costs upon the creditors need not follow the decree. In order to have the full benefit of the right of subrogation, such a bill might be necessary to guard against the danger of injury from a release or transfer of the security.
The point is made by appellees’ coimsel that the debt for which the mortgage was given has been extinguished, so far as Bliss and Topliff are concerned, by their discharge in bankruptcy, and the mortgage with the debt, and that the creditors proving in the bankruptcy proceeding their whole claims, without reference to the mortgage security, and accepting the composition on the whole amount, was a waiver and extinguishment of the mortgage. The notes of Bliss, Moore & Co., the payment of which the mortgage of Topliff was given to secure, were the joint and several obligations of Bliss, Moore and Topliff. The bankruptcy discharge of Bliss and Topliff discharged them from their personal liability upon the notes, but did not discharge the mortgage debt. That still remained owing by. Moore, and the mortgage, as an incident to it, continued operative, and Moore’s existing equity, as surety, to have the mortgage .security surrendered up by the creditors to him upon his payment of the debt, would be unaffected by the bankruptcy discharge.
We are of opinion the case makes an equitable title for relief, and the decree will be reversed, and the cause remanded for further proceedings conformable to this opinion.
Decree reversed.