| Ill. | Nov 20, 1883
delivered the opinion of the Court:
Amos Eice, the guardian, having paid $1000 of his ward’s money in the purchase of the land in question, the ward might follow the money into the land, and claim it to be trust estate, as was the money. The ward, then, had a double recourse for his guardian’s defalcation,—either to this land, or to the guardian’s bonds. The ward’s personal representative resorted to the bonds, obtained judgment against the sureties, and they' paid the judgment in full. A surety has a clear right, upon paying the debt of a principal, to be substituted in the place of the creditor as to all the 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.) Under this equitable doctrine of subrogation, the sureties, upon payment of this j udgment, were entitled to stand in the place of the personal representative of the ward, and have all the means for satisfaction of the payment they made that such representative had in respect to the ward’s claim, and, therefore, right of resort to this land, as held in trust for such purpose. Marsh v. Pike, 10 Paige Ch., 595" date_filed="1844-03-05" court="None" case_name="Marsh v. Pike">10 Paige, 595; McNeill v. Morrow, Rich. Eq. Cases, 172; Rhame v. Lewis, 13 Rich. Eq. (S. C.) 269 ; Cottrell’s Appeal, 23 Pa. St. 291.
The point*is taken by appellant, that where a judgment is rendered against principal and surety, payment of the judgment by the surety extinguishes it, and the surety can thereafter derive no benefit therefrom by means of subrogation. Although authority is to be found to that effect as to enforcing such a judgment after it has been paid, Mr. Bispham lays it down that it must be considered to be the generally received doctrine that a surety who pays a debt which has been' reduced to judgment, is entitled to have the judgment kept alive for his benefit, and to enjoy, as against the principal debtor, exactly the same advantages which could have been claimed by the judgment creditor. (Bispham’s Equity, sec. 336, and authorities cited.) But it is not necessary in this case to go to that length, as it is not sought here to enforce the guardian’s bond, or the judgment rendered on it, but to have the benefit of a resulting trust in land which the creditor had,—something entirely distinct from, and independent of, the bond and judgment.
The objection that the decree is not supported by the evidence is not well founded.
It is claimed that it was error to admit in evidence the $1000 bond, the first bond,—that the giving of the $3000 bond fully .satisfied and discharged the first. That is immaterial here. It would be a question entirely between sureties. The misappropriation of money was under the last bond, the $1000 which went into the land coming from the proceeds of the sale of the ward’s real estate. T. Gr. Stewart, against whose devisee, Eliza Anderson, the judgment paid was got, was surety on the last bond; and further, the three sureties on the two bonds arranged between themselves that each should pay one-third of the judgment, as was done.
It is claimed that it was error to admit in evidence the decree in the case of Caroline Rice v. Eliza Anderson et al.— the one which was paid,—because neither Amos Rice” nor Lucinda or Fannie Rice was a party to that decree. The liability of Amos Rice, as guardian, and the amount of it, had been established in the county court, and judgment therefor rendered against him. The decree against Eliza Anderson, devisee of the surety Stewart, was but for the amount of that liability thus established, and so was evidence against Amos Rice that the decree was for a just liability as surety of Rice. We see no interest which Lucinda, the wife of Amos Rice, and Fannie Rice, have, entitling them to object. Fannie Rice is said to be one of the heirs of Amos Rice. She can not be heir of a person living.
It is said the decree gives the whole estate, only amounting to $1000, to Caroling Bice, administratrix of the ward Ohed Bice; that Fannie Bice is one of the two wards, and it is asked when she gets'her share. It does not appear that the guardian is indebted to her. The county court determined what was due to Caroline Bice, as administratrix of Obed Bice, and the case has proceeded without reference to Fannie, except that she is made a party defendant, and merely adopts the answer of Amos Bice, and Lucinda, his wife, making no reference whatever to any interest of her own as a ward. We see no reason why the decree should have any regard for her as ward.
It is objected that Amos Bice was not a competent witness against Fannie Bice. All the reason given is, that Fannie is one of the heirs, and her guardian is called to testify against her interest. We fail to see why he was not a competent witness.
It is said, finally, the fact that the decree provides for the sale of homestead and dower rights is enough to reverse it. Amos Bice had no iuterest in the land for homestead and dower rights to attach to. The land was trust estate, in which he had nothing more than the naked legal title. The ■decree ordered sold but an undivided five-sixteenths of the land,—the proportional part represented by the $1000.
We find no error in the decree, and it is affirmed.
Decree affirmed.