73 Ala. 554 | Ala. | 1883
— A statement of the facts of the case-is, of itself, decisive of all the questions it is supposed to involve. The appellees, complainants in the original bill, were sureties on the official bond of one Hogan, as tax collector of-the county of Cleburne. Hogan failed to pay over or account for taxes due the State, it was his duty to collect. Suit was instituted, which resulted in a judgment against him and the complainants, as his sureties, in the name of the Auditor for the use of the State, in the Circuit Court of Montgomery county, rendered on the 23rd day. of December, 1880, for the sum of twelve hundred and tiventy-eight 62-100 dollars and costs of suit. While the suit was pending, to secure the payment of a debt to the appellant Turner, Hogan executed a mortgage, conveying certain real estate situate in the county of Cleburne.
The statutes attach a lien on the property of a tax collector, from the execution of his official bond, or rather make the bond a lien for the payment of “any judgment which may be rendered against him iii his official capacity, for State or county taxes,” etc. The lien is not a right of property; it is neither inore nor less'than a right to charge the property of the collector with the payment of his defaults, in priority of subsequent .alienations, incumbrances, or liens. There is no legal remedy for its enforcement; like other liens of which possession is not .an element, and for the enforcement of which specific legal remedies are not provided, it can be carried into effect only through a court of equity. — Dallas County v. Timberlake, 54 Ala. 412; Knighton v. Curry, 62 Ala. 404. If the sureties ■of the collector pay and satisfy his official default, in a court of equity they will be subrogated to the statutory lien, for the purpose of reimbursing or indemnifying them; but the equity •of subrogation will not arise until they have made payment of the debt or default of the principal. — Knighton v. Curry, supra.
' The State could have proceeded in a court of equity for the enforcement of the lien, or it could, as it did,.rely on its legal remedies. There was in the collector, and principal in the judgment, the equity of redemption in the mortgaged premises, which was the subject of levy and .sale, and in the other premises, there was also an estate or. interest, which was, it
It is generally recognized in this country, as the equity of ■ a surety paying the debt of the principal, to be subrogated to judgments or decrees the creditor has obtained against him, and to the liens the law may attach to them. And there is a like equity, if he pays a bond d'ebt, to be subrogated to the preference of payment which the law may attach to a debt of that dignity. The payment may at law operate a satisfaction of the judgment, and an extinguishment of the bond, but in equity each will be kept alive for his indemnity.. — Knighton v. Curry, supra. The equity springs from the payment by the surety of the debt, the principal was bound primarily to pay. We repeat, there was here no payment by the sureties of the debt of the principal. The debt was paid by a sale of the right or title, real or supposed, which the principal had in and to the lands. It was this right or title the sheriff sold; all that he could sell legally. The extent of his authority, and that not
The decree of the chancellor must be reversed, and a decree will be here rendered sustaining the demurrer, dissolving the injunction, and dismissing the bill at the costs of the appellees in' this court, and in the court of chancery.