45 Neb. 23 | Neb. | 1895
On the 7th, of January, 1891, S. G. Wright aud A. J. Baldwin executed and delivered their promissory note to-the South Omaha National Bank for the sum of $3,000, due in ninety days. This note Flora M. Wright signed as surety. October 3, 1891, Wright & Baldwin executed and
The contention of the appellant is that the debt due to it from Wright & Baldwin as principals and Flora M. Wright as surety should have been declared a first lien upon the mortgaged property or its proceeds. This contention is an invocation of the equitable doctrine of subrogation, the argument of the bank being that it is entitled to be subrogated to all the claims against the mortgaged property acquired by Flora M. Wright by the mortgage given to her by Wright & Baldwin to secure the debt due from them to her, and to indemnify her for becoming surety
This is a suit in equity. All the parties are before the court. It is undisputed that Flora M. Wright is surety for Wright & Baldwin to the bank on the $3,000 note dated January 7,1891. This note is past due and wholly unpaid. To secure its payment the bank has a lien upon certain chattels by virtue of a mortgage executed to it thereon by Wright & Baldwin; and Flora M. Wright, to indemnify her for signing this note as surety, has also a mortgage upon the same chattel property. She has also a mortgage upon this property to secure a debt due to her from Wright & Baldwin, but this debt is past due, is unpaid, and is held by her. She owes the bank, then, the $3,000 note which she signed as surety. If her debt due from Wright & Baldwin be first satisfied out of the proceeds of the chattel property, the remaining money will be insufficient to discharge the debt owing by her and Wrigbt & Baldwin to the bank. This would necessitate supplemental or further proceedings on the part of the bank against Mrs. Wright to recover the balance due on the note which she signed as surety for Wright & Baldwin. In other words, it would lead to a multiplicity of suits, — a result which a court of equity is always desirous of preventing when it can be done without injury or injustice to the parties.
The doctrine of subrogation is not administered by courts
Reversed and remanded.