20 Ill. App. 625 | Ill. App. Ct. | 1887
Appellants base their claim to share equally with appellee Garrels, upon the doctrine of subrogation. Unless appellants have shown that Byhiner & Oo. were in some way liable to pay the note and interest in question, that doctrine has no application. A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. Hough v. The Ætna Life Ins. Co., 57 Ill. 318; Young v. Morgan, 89 Ill. 203; Beaver v. Slanker, 94 Ill. 175. A stranger within the meaning of this rule is not necessarily one who has had nothing to do with the transaction out of which the debt grew. Any one being under no legal obligation or liability to pay the debt is a stranger, and if he pays the debt, a mere volunteer. In Bishop et al. v. O’Connor et ah, 69 Ill. 431, the Supreme Court say the doctrine of subrogation in equity is confined to the relation of principal and surety and guarantors, and to eases where a person, to protect his own junior lien, is compelled to remove one which is superior, and to eases of insurance. Sheldon on Subrogation, Sec. 11. What relation, then, did Ryhiner & Co. bear to the notes at the time they claim to have made the payments? In view of the correspondence between them and Gruner, Haller & Co. it can not be said that they became liable as indorsers, even if they had not qualified their liability by the indorsement. The assignment was for the sole purpose of transferring the legal title to the parties to whom the notes belonged, and the ordinary relation of indorser and indorsee did not therefore exist. The indorsement, however, did specifically provide that no liability beyond that arising under article two should be created by it. The liability of Ryhiner & Co., therefore, if any existed, grew out of their agency and not-because of their indorsement. If liable under their contract of agency, that liability must have resulted from their failure or neglect to perform their contract of agency, of which there is no proof or pretense. Therefore Byhiner & Co. were under no legal obligation whatever to pay the note to Mrs. Imer, or the interest on the other notes.. But it is said that Barker alone can raise this question. When it is considered that the. attempt here is, to affect the rights of appellees by depriving them of a part of the security out of which they may make their debt and thereby compel them to take only a pro rata part thereof, it is impossible, from principle or authority, to sustain such a position. White et al. v. F sher et al., 62 Ill. 258. Again, the doctrine invoked by appellants rests in equity, and can only be applied with a due regard to the legal and equitable rights of others. Could there be any legal, equitable or moral obligation resting upon Ryhiner & Co. to pay the Inner note, or the installments of interest, which does not also exist as to the notes held by apjmllee Garrels? How can it be said that.they were obligated, either as agents or indorsers, to pay the first note, but not the other two, all growing out of precisely the same transaction and transferred by the same indorsements? There can be but one answer to these questions. Whatever duty they owed to the assignee of the first note, they also owed to the assignees of the second and third. Whatever justifiable motive may have prompted them, even outside of a legal obligation to pay the one, ought, in equity and good conscience, to prompt them to pay the others. Therefore the decree giving the holder of' the second and third notes a preference is equitable and just as between him and Ryhiner & Co. or their assignees. Appellants are in a dilemma. If they say Ryhiner & Co. were under no obligation to pay Mrs. Imer, not being in the position of purchasers or assignees, they place themselves in the attitude of volunteers, and for that reason have no stand ingas against appellee. If they say Ryhiner & Co. were under obligation to pay that note they thereby admit the same obligation to appellee and must fail. In any view of the case it is clear that the decree of the circuit court is right.
Affirmed.
