Yates v. Mead

68 Miss. 787 | Miss. | 1891

Woods, J.,

delivered the opinion of the court.

Section 998, code of 1880, by its terms subrogates a surety paying a judgment against the principal debtor to all the rights of the judgment-creditor, including that of enforcing all the liens which the judgment-creditor had by virtue of such judgment. It was intimated in Dibrell v. Dandridge, 51 Miss. 55, that a similar statute, in the code of 1871, did not cover cases in which indorsers had made payment for the principal debtor of a judgment jointly rendered against the debtor and the indorser. But, as we suppose, to meet this opinion of the court in Dibrell v. Dandridge, § 1140, of the code of 1880, extends the benefits of § 998, code of 1880, to any party to an execution, who shall pay it, against any other party to it who is liable to such party for the sum paid. It seems clear, therefore, that M. A. Dees, by operation of law, immediately upon paying and satisfying the judgments of John I. Adams & Co. against G. M. Dees, the principal debtor, was subrogated to all the rights of the judgment creditors.

This subrogation took place, as we have said, immediately on payment by the indorser, and by operation of law. No entry of record of the fact of payment by the indorser was required to be made; and the entry of satisfaction on the execution-docket and judgment-roll by simply writing the word “ settled,” is not ground for refusing subrogation to the indorser, M. A. Dees, who is clearly shown to have satisfied the judgments, such entry not having been made at the instance or under the direction of the indorser. The fact of payment by the indorser was not a matter requiring to be put to record, and the failure of the record to show this fact does not affect the rights of the indorser who paid the judgment.

It is insisted, however, by counsel for appellees, that way judgment lien which M. A. Dees acquired by his subrogation to the rights of the judgment creditors on the lands embraced in this controversy cannot be enforced by sale under execution, because the deed of conveyance of July 14, 1881, was taken by Danner & Co. (through whom appellees trace title) in payment and satisfaction of a pre-existing lien created by a mortgage from G. M. Dees to Danner & Co., made in February, 1880, and that the mortgagees had the right to take the mortgaged estate, in good faith, in satisfaction and settlement of their pre-existing debt secured by the mortgage.

Granting the correctness of the general proposition, it is true, nevertheless, that, in the present litigation, it was incumbent upon those asserting this right in Danner & Co. to show that they so dealt with the mortgaged estate, in taking to themselves absolute title to the same, as not to injure or destroy rights of junior lienors. In other words, the burden was upon Danner & Co., or, more properly speaking, upon those claiming under them, to show the amount due upon the mortgage-debt at the time of the taking an absolute conveyance to the property; to show the value of the property at the time; to show that the debt was equal in amount to the value of the mortgaged estate; that the equity of redemption was valueless, and hence, that no harm came from such acquisition of absolute title to the junior judgment creditors. This burden the appellees have not successfully borne.

Moreover, the absolute conveyance of July 14, 1881, on its face, the antecedent agreement between Danner & Co. and G. M. Dees, of July 9, 1881, and the evidence generally, demonstrate that the conveyance of the absolute title was not made solely to pay and satisfy the mortgage debt, but that it was made in pursuance of a plan to settle all indebtedness of every character due from G. M. Dees to Danner & Co., in consideration of the surrender and ex-tinguishment of such indebtedness by Danner & Co,, and the payment of an unknown sum of money by Danner & Co. for G. M. Dees to certain named and unnamed creditors of Dees.

The decree of the eowrt below is reversed, and a decree will be entered here in favor of M. L. Yates.