This is an action brought by the appellee, James A. Harbin, against the appellants, Frederick A. Smith and John P. Young, to recover a judgment for money paid by him as surety on a judgment against said appellant Smith and the appellee, and to have a lien declared on real estate owned by said Smith at the time of the rendition of the judgment, but now owned by the appellant Young.
Appellant Young demurred to the complaint, and his demurrer was overruled, to which ruling he excepted, and assigns the same as error.
The averments in the complaint are, in substance, as follows : That, on the 1st day of September, 1884, the appellant Smith as principal, with William Donaldson and the appellee as his sureties, executed a promissory note to one William H. C. Lingo, whereby they promised to pay to said Lingo four months after date the sum of $100, for value received, without relief from valuation or appraisement laws, with interest thereon at the rate of eight per cent, per annum from maturity, and attorney’s fees; that said note was not paid at maturity, and, on the 2d day of February, 1885, the said Lingo instituted an action on said note before Hannibal Young, who then was a justice of the peace in and for Steen township in said county, against the makers of said note, to recover the amount due thereon, and such proceedings were had in said action before said justice that, on the 6th day of February, 1885, the said Lingo obtained a judgment’ before said justice against said Smith, Donaldson and the appellee for the sum of $110.80, together with costs taxed at $5.40, and accruing costs amounting to $13; that, on the 7th day of February, 1885, said Lingo filed a certified transcript in
The judgment, as set out in the complaint in favor of Lingo, was a lien in favor of the plaintiff Lingo, on the real estate afterwards mortgaged to appellant Young, but until it was modified, and until a judgment had been rendered
In Kreider v. Isenbice, 123 Ind. 10, it is held that an action by a surety, who has paid a judgment, to recover the amount paid, is barred in six years, and that when a judgment is rendered against the makers of a note, without disclosing the suretyship, and is paid by one of the judgment defendants, although in fact a surety, it is a prima facie satisfaction of such judgment; that when a surety pays a debt he has the right to be subrogated to the rights of an obligee whose claim he has paid, but that the action is based upon an implied promise of the principal to indemnify his surety.
As appears by the averments of the complaint, Smith, the judgment debtor, owned certain real estate; he first mortgaged it to secure a debt he was owing to the board of trustees of the Vincennes University; then Lingo filed a transcript, and obtained a lien upon it; then Smith mortgaged it to Young to secure a debt he owed to Young; the two mortgages were foreclosed and the real estate sold to satisfy them, and Young, the junior mortgagee, became the purchaser.
If, at the time of the rendition of the judgment, or at any time prior to the execution of the mortgage to Young, the appellee had filed a complaint, as contemplated by section 1212, R. S. 1881, and had the question of suretyship tried and determined, and judgment rendered in his favor as surety, he would have thereby acquired a right to have been subrogated to the lien existing on the real estate in favor of the judgment plaintiff, and which he could have enforced by execution, as provided by section 1214 ; but until such finding was made, and judgment declaring him to be surety was ren
Judgment reversed, at costs of appellee, with instructions to sustain the demurrer of Young to the complaint.