132 Ky. 625 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
On October 17, 1893, C. H. Ryan recovered a judgment in tbe Logan circuit court against F. J. Baird for tbe sum of $1,666.66, with interest from March 16, 1887. On tbe next day be assigned tbe judgment to one H. B. Oaldwell, with tbe following writing, to wit; “For value received, I hereby sell and assign to H. B. Oaldwell the judgment rendered in this action, on October 17, 1893, in my favor, for sixteen hundred sixty-six and 66-100 dollars, with- interest from March 16, 1887, and against tbe plaintiff, F. J.
F. J. Baird was a resident of Kansas City, Mo. He appealed to this court from the judgment against him without superseding it, and after the affirmance the parties claiming to be interested in the judgment executed the following writing: “'Whereas, the undersigned have this day, by writing, empowered Jas. H. Bowden to go to Kansas City, Mo., and to collect a judgment of the Logan circuit court in favor of C. H. Ryan against F. J. Baird for $1,666.66 2-3, with interest and costs, adjudged to _ said Ryan by the Court of Appeals, with authority to compromise said demand, if he deems it best to do so; and whereas, the undersigned, set up conflicting claims to said judgment, but agree that it is better to have it eoL
It appears in the record without contradiction that the judgment against Baird was collected, and, after paying all cost and attorney fees, there remained $2,314, which was deposited in appellee bank on October 2, 1901, under the terms of the agreement above copied. Appellees disputing appellant's right to any part of the Baird judgment when collected, she instituted this action September, 1897, by which she sought to recover the whole amount of the judgment, with its interest, less the cost and attorney’s fees. She based her action upon the written assignment to her from her husband, which is copied above, and the following allegations of her petition, to wit: “Plaintiff says that, after the rendition of the aforesaid judgment against the said Baird in this court,
'Counsel for the parties have filed elaborate briefs discussing with ability the questions of fraud, estoppel, and others which we deem it unnecessary to name. After a careful consideration of the record, we are of the opinion that the court erred to the prejudice of appellant in dismissing her petition. Under the facts alleged and proved without contra' diction, she was entitled to he subrogated to the rights and lien of H. B. Caldwell to the claim against Baird to the extent her property was used in the payment of the H. B. Caldwell judgment. The testimony of C. H. Ryan, relating to the purpose for which the judgment against Baird was assigned to H. B. Caldwell, is as follows: “Q. What was the consideration of this assignment by you to H. B. Caldwell of this Baird judgment? A. That he was to use it in the payment of the $2,000 mortgage he had on that property. I had promised' Mrs. Ryan when she gave that
Under this state of facts, and as appellant was merely a surety, she was clearly ’entitled to be subrogated to all the rights and remedies of H. B. Caldwell. See the cases of Albro v. Robinson, 93 Ky. 195, 19 S. W. 587, and Bickel v. Judah, 3 Ky. Law Rep. 728. In the case last named the court said: “Besides, in regard to sureties, it is a well-settled rule that when 'a surety satisfies the debt for which he is liable, he is entitled to have from the creditor whose debt he pays the securities which such creditor has obtained from the debtor, and, if such securities are not voluntarily given up, it is the right of the surety to come to the court to have such delivered.’ Brandt on Suretyship, section 263. 'As soon as the surety has paid the debt, an equity arises in his favor to have all the securities, original and collateral, which the creditor holds against the person or property of the principal debtor, transferred to himself, and to avail himself of them as fully as the ceditor could have done for the purpose of obtaining indemnity, he is considered at once subrogated to all the rights, remedies, and securities of the creditor and entitled to enforce all the liens, priorties, and means of payment as against the principal, and to have the benefit even of securities that were given without his- knowledge.’ ”
It is claimed by appellees that, as appellant did not ask to be subrogated to the claim held in lien by the creditor, Caldwell, she cannot recover. It is true that she did not, in specific terms, ask for this; but she asked for all general and equitable relief. This action was in equity, and she asked for all the fund.
For these reasons the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.
It appears that the parties are in doubt as to the character of judgment that should be rendered on the return of the case to the lower court. Mrs. Kate G-. Ryan, appellant, has been given a Hen on the judgment debt collected from F. J. Baird and deposited in the Logan County Bank, for the reasons stated in the opinion, for the sum of $1,255, with interest, and she has the first and only lien adjudged against that fund. The court will ascertain the amount of that fund, with its interest, and what the total assets of the insolvent bank will pay on that fund, and out of that sum. direct the assignee, or the person in possession of it, to pay Mrs. Ryan her claim, with interest.
We cannot direct how the. remainder, if there