Richards v. Yoder

10 Neb. 429 | Neb. | 1880

Cobb, J.

The demurrer in this case being general does not point out the specific grounds of objection to the petition. But upon reference to the brief of the defendant I find that the point relied upon is that the chattel mortgage had been discharged of record, and that fact not noticed in the petition.

If the mortgage had been discharged of record and any of the parties were in a position to take advantage of such fact, they certainly could not do it by demurrer. The mortgage being shown to have been duly executed and recorded in the proper office, the presumption is that it remains in full force and effect, and it is not necessary that the petition should negative every possible circumstance which might have intervened to render it inoperative. If any such have occurred the defendants should have set the same up by answer. They can not do it by demurrer.

I do not understand the defendants as controverting the proposition that plaintiff was, before the discharge of the chattel mortgage, entitled to be subrogated to its benefits as a security for the payment of the judgments. Certainly no such position could be maintained.

In a case quite in point Chancellor Walworth stated the rule in the following words: “It is well settled, however, that where a surety, or a person standing in the situation of a surety, for the payment of a debt receives a security for his indemnity, and to discharge such indebtedness, the principal creditor is in equity entitled to the full benefit of that security. And it makes no difference that such principal creditor did not act upon the credit of such security in the first instance or even know of its existence.” Curtis v. Tyler & Allen, 9 Paige’s Ch., 432. And such I understand to be the settled law.

It is quite certain then that the district court erred in sustaining the demurrer, and the judgment must be reversed and the cause remanded for further proceedings in accordance with law.

Reversed and remanded.