56 W. Va. 257 | W. Va. | 1904
The assignability of a right of subrogation against a 'co-surety, proof of payment of a judgment out of the proceeds of real estate of the assignor judicially sold to satisfy it, and maintenance of the lien of the judgment by issuance of executions thereon are the important subjects' for consideration in disposing of ■.this cause.
On the 1st day of February, 1886, the Farmers’ Bank of Phil-ippi obtained a judgment, in the circuit court of Barbour coun•ty, against J. W. Talbot, principal debtor, and John P. Wood-ford, J. E. Heatherly, Henry A. Call, J. M. Woodford, Jacob W. Robinson and Anthony T. Daniels, sureties, for the sum of $1,-781.80, with interest thereon from January 30, 1886, and $3.75 •costs. Talbot was then insolvent. Execution was immediately issued, went into the hands of the sheriff February 15, 1886, and •was returned unsatisfied by order of plaintiff’s attorney on Feb•ruary 27, 1886. One month later, J. M. Woodford assigned and transferred all his personal property to trustees, by a written contract which may be seen by reference to the case of Heatherly v. Bank, 31 W. Va. 70, 72. On the 10th day of May, 1886, said bank instituted a suit in equity against said J. M. Woodford and numerous other defendants, some of whom are judgment creditors, for the purpose of subjecting Woodford’s real estate to the satisfaction of the liens thereon. On the 10th day of July, 1886, after the commencement of said suit by the bank, Weimer Wright and Watkins recovered a judgment against said Wood-ford for $354.87 and $12.20 costs, and, on the same day, Creer and Laing obtained a judgment against him for $983.64 and ‘$12.20 costs.' On this last judgment $323.62 was paid March 5, 1887.
Sometime in the year 1887, James E. Heatherly, one of the .sureties for the Talbot debt, commenced a suit in equity to re
Out of the proceeds of the personal property which went into-the hands of Teter and Gall, trustees, the circuit court, by its first decree, applied $524.02 on the judgment of $1,781.80 as of' the 26th day of September, 1887. This application of the trust fund was one of the errors corrected on the appeal. By the last decree, it was ascertained and determined upon the mandate of' this Court that the Farmers’ Bank of Philippi had the sixth lien upon the real estate of James M. Woodford for the sum of $1,961.95 with interest from September 26, 1887, on account of'
Early in these preceedings, to-wit, October 22, 1887, James M. Woodford executed to Greer and Laing and to Weimer, Wright and Watkins a written assignment of “whatever right or ■cause of action” he had or might have “for contribution or subro-gation or otherwise” against his co-sureties or either of them “in the judgment for $1,781.80 with cost,” etc. These assignees brought this suit on the 28th day of March, 1900, less than nine years from the date of the issuance of the last execution on the judgment, to be substituted and subrogated to the rights of James M. Woodford against John F. Woodford for the amount paid on said judgment out of the proceeds of the sale of said .James M. Wbodfords’ real estate in excess of his equitable portion thereof, which the plaintiff’s allege was one-half, less the payment of $594.13 paid by said co-surety, the principal debtor and all the sureties except James M. Woodford and John F. Woodford having been insolvent, by reason of which nothing was collected from any of them on account of said judgment. 'There is some contention of payment made by Heatherly, one of the sureties, and of ability to pay by the estate of Robinson, another one of the sureties, but these questions, for convenience, will be postponed for the present.
That an equitable claim, such as the right of a surety, who has paid the debt of his principal or more than his equitable part
It is not upon non-assignability of the right, however, that the defense is based. One contention is that payment of the judgment out of the proceeds of the sale of James M. AYooclfords’ real estate is not proved. The decrees- hereinbefore referred to are exhibited with the bill and relied upon as pToof of payment. They show that the property was sold for $7,510. The debt in question was made by the last decree sixth in order of pajunent and these six liens amounted, in the aggregate, to only $2,834.66. There were judgments amounting to. $4,186.72 which had preference of payment out of the fund arising from the sale of the personal property, but that fund amounted to $4,200.52 which was probably sufficient to cover all of these judgments with the interest thereon. Whether it was or not, the decree gave preference over the bank judgment to only one of these judgments, that of A. Block & Co. for $325.00 which was one of the first six liens and included in the total of $2,834.66. Hence, there can be no doubt as to the sufficiency of the proceeds of the sale of the real estate to pay the judgment in question. But it is urged that the
Laches and the statute of limitations are relied upon as other defenses. The answer to this is that the assignment made by ¡Woodford to the plaintiffs carries the benefit of the judgment lien upon the property of John F. Woodford held by the Farmers’ Bank of Philippi. On satisfaction of the judgment, James M. Woodford became entitled to all the rights and securities for that debt held by said bank. By his assignment to the plaintiffs, he invested them with the same rights, including the benefit of the lien of the judgment upon the lands of John F. Wood-ford. That lien was not allowed to lapse. As already shown, executions were issued upon it within two jnars, and before the expiration of ten years from the date of the first of the executions, another one was issued on the 8th day of July, 1891, by reason of which the lien would continue for .another period of
That the right of subrogation may be lost by lack of diligence in its assertion against third parties is not overlooked, but here the rights of no such persons have intervened. Such lack of diligence is termed laches in Gring’s Appeal, 89 Pa. St. 336, but it is more like an estoppel in pais than laches. Laches pre•supposes a right of action founded upon contract or cause of -equitable relief between parties to a contract or a transaction out of which an equity arises. It is a failure to prosecute in time that cause Of action, or until after such changes in consideration as render the enforcement of the right inequitable. 18 Am. & Eng. Ency. 97. Estoppel in pais extends beyond the ■parties to the cause and operates in favor of third parties. Herman Est. & Res Jed. section 7, clauses 3 and 4; Bates v. Swiger, 40 W. Va. 420. However the principle may be classed, there rare no facts calling for its application.
Whether in the absence of a lien, the enforcement of which .•gives equity jurisdiction as long as it exists, the right to contribution in equity, where the plaintiff seeks more than an aliquot ■part of the debt determined by a division by the whole number of the sureties, because of the insolvency of some of them, is barred by the five years statute of limitations, does not arise here. Part ¡of such claim would be a legal demand as to which there is con
The answer relies upon payment by Heatherly of his portion of the judgment, ancl an attempt is made to sustain this affirmative allegation by the evidence of a witness who says that the release deed book in the clerk’s office of the county court shows-that Heatherly’s share has been paid. Neither the release itself nor a copy thereof is produced and the witness does not undertake to say by whom the. payment was made. His testimony is-only secondary evidence and, therefore, could not be considered, had proper objection to it been made, and, if it were competent,, it fails to show that Heatherly paid any portion of the judgment. It only shows a release of the judgment, without indicating; who paid it. Payment out of the proceeds of Woodford’s real estate would justify the execution of the release and may ac
Another defense is that there is in the hands of G. F. Teter,.. special receiver in the chancery cause of P. G. Robinson v. J. W. Robinson, one of the sureties for the bank debt, a sum of money-amounting to one thousand or fifteen hundred dollars, belonging to the estate of said Robinson, and derived from rents of' his real estate under a decree in said chancery cause of Robinson v. Robinson. The object of that suit seems to have been to enforce the lien of a judgment against Robinson's land, and the-real estate was evidently placed in the hands ©f a special receiver and rented for a time before it was' sold. The claim is-that these rents were never applied to the pajment of any judgments, and still remain in the hands of a special receiver. The-only evidence of this is the testimony of John F. Woodford and L. D. Robinson, a son of the said J. W. Robinson, who died before the institution of this suit. The record of the chancery suit of Robinson v. Robinson which would show what became of these funds and the proceeds of his lands is not-produced. It is said' to have been lost. But the order book would undoubtedly show something concerning the disposition of his estate. Hone of the decrees in that case are produced in the effort to-substantiate this contention, and this testimony is open to the objection interposed to the evidence offered concerning the alleged Heatherly payment. It proves nothing. John F. Wood-ford testifies that it is his understanding that Robinson’s real estate sold for more than enough to satisfy all the liens upon it and that, but for the failure of the Farmers’ Bank to present in that suit its judgment against Robinson, that surety would have-paid out of the proceeds of his real estate his portion of the debt. This, again, is only secondary evidence offered without any foundation for it having been laid and it falls far short of proving the affirmative matter of defense alleged. The witness does-not state what the judgments against Robinson amounted to,, the amount realized from the sale of his real estate, the costs-of the suit, or any of the. facts upon which the issue made depends. He does not even say of his own knowledge that there was a surplus, but only that it is his understanding. Whether,, if proved, the matter relied .upon would be a good defense, it is unnecessary to inquire.
It follows from these conclusions that the circuit court erred in dismissing plaintiffs’ bill. They are clearly entitled to enforce the lien of the judgment against the real estate of John 1?. Woodford fox one-half of the judgment of February 1, 1886, with interest thereon from said date and $3.75 costs, less the sum of $594.13 paid by said John F. Woodford, ifovember 4, 1889.
By the decree satisfied out of the proceeds of the lands, the principal sum in the judgment and interest thereon to September 26, 1887, were aggregated, the amount ascertained to be $1,961.95, and interest allowed on the aggregate from said date, and the proceeds of the land sold were held liable to contribution in favor of any of Woodford’s co-sureties who might satisfy the decree, on the basis of said aggregate sum, subject to the credit aforesaid. Under section 18, chapter 131, of the Code, a decree for the principal with interest added to the date of the decree, June 4, 1891, could have been made, allowing interest on the aggregate from that date. Hence, the law authorized a decree for interest upon interest after decree, in that way and to that extent, in favor of the creditor against all the sureties, and upon his satisfjdng the decree with such interest, the same right passed to J. M. Woodford against his co-sureties, together
For the reasons above stated, the decree complained of will be reversed and the cause remanded with directions to enter a decree for plaintiffs in accordance with the principles and directions herein stated, and for such further proceedings as the rules and principles governing courts of equity may require.
Reversed.