Bassett v. Streight et als.

• Decision Date: 02 May 1916
• Citation: 78 W.Va. 262
• Parties: Bassett v. Streight et als.
• Court: West Virginia Supreme Court

78 W.Va. 262

Bassett

v.Streight et als.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 1916.

Decided May 2, 1916.

1. Subrogation Nature of Right.

The doctrine of subrogation is that one who has the right to pay and does pay a debt which ought to have been paid by another, is entitled to exercise all the remedies which the creditor possessed against that other. (p. 265).

2. Same Principal and Surety Right of Principal.

A surety, on the payment by him of a judgment constituting a lien on the property of his principal, is entitled in equity, without an assignment thereof, to be subrogated to the rights, powers and remedies of the judgment creditor, for the enforcement of the lien against property of the principal debtor for his own benefit, (p. 265).

3. Vendor and Purchaser Rights of Purchaser Notice of Prior Lien.

A purchaser of property with notice of a right in a surety to charge the same by way of subrogation, takes it subject to such equitable right, and such notice may be actual or constructive. (p. 265).

4. Equity Rreference Necessity.

Where there is a judgment against three persons jointly, and one of them is surety for the other two, and the surety pays the judgment in whole or in part, he is entitled to be subrogated to the rights of the judgment creditor against the principal debtors for so much of the judgment as he paid; and where one of the judgment debtors is the owner of real estate at the time of the rendition of the judgment, and aliens the real estate after the judgment is properly recorded, and a suit in chancery is brought by the surety seeking to be subrogated to the remedies of the judgment creditor, for so much of the judgment as he paid, and to charge the land in the hands of the purchaser, with the judgment, or so much of it as he has paid, and there is no controversy as to the amount of the judgment, or the amount paid by the surety, or that he was surety for the other two judgment debtors, and it does not appear that there are any other liens upon said land, it is not necessary to refer the cause to a commissioner to ascertain the liens, before entering a decree setting aside the deed conveying the real estate as to this judgment only, and charging the real estate in the hands of the purchaser with the judgment. (p. 265).

Appeal from Circuit Court, Wetzel County.

Action by Aaron Bassett, who sues, etc., against Charles G. Streight and others. From the judgment defendant C. A. Long appeals.

Affirmed.

Thayer M. Mclntire, for appellant.

Thos. H. Cornett, for appellee.

Mason, Judge:

On the 2nd day of July, 1907, the Bank of Pine Grove obtained a judgment before a justice of the peace of Wetzel County for $117.69, with interest and costs, against C. G. Streight and M. L. Streight, and Aaron Bassett. An execution was issued against them, and on October 26, 1907, the execution was returned satisfied. The justice's docket shows that Bassett paid $103.00, October 26, 1907, Chas. G. Streight paid $15.00, and Mrs. Streight paid $10.00. An abstract of the judgment was recorded in the judgment lien docket in the office of the clerk of the County Court of Wetzel County, W. Va. It appears that at the time of the rendition of the said judgment and for several years afterward, M. L. Streight was the owner of some lots of ground in the village of Pine Grove, in said county. These lots were conveyed to Mrs. Streight by the defendant C. A. Long, by deed dated March 2, 1906, by her name of Mrs. C. G. Streight; and on the 6th day of June, 1912, Mrs. Streight, as Mrs. C. G. Streight, and her husband, conveyed these lots in trust to T. M. McIntire, Trustee, to secure the payment of $150.00 to E. E. McIntire; and said trustee executed said trust by making sale of the lots to defendant C. Amos Long, on the 23rd day of July, 1913.

This suit was commenced in September, 1913, by Aaron Bassett, plaintiff, against Chas. G. Streight, Mary L. Streight, C. Amos Long, the Bank of Pine Grove, T. M. McIntire, Trustee, and E. E. McIntire, defendants. The plaintiff avers in his bill that the judgment rendered by the said justice of the peace of Wetzel County against him and C. G. Streight and M. L. Streight, was upon a note in which he was accommodation endorser, endorsed by him as surety for Chas. G. Streight and Mary L. Streight; that this note was delivered to the Bank of Pine Grove; that he received no part of the consideration of said note, but that the same was paid to Chas. G. and Mary L. Streight; and that he endorsed the note, and became surety for Chas. G. and Mary L. Streight as principal makers. He further says that an execution was issued on the judgment, and in order to protect his property from sale he was forced to pay and did pay $103.00, and some small sums in addition. Plaintiff then states that the lots were owned by said Mary L. Streight at the time of the rendition of the judgment; that she conveyed the same to T. M. McIntire, Trustee, and that they were sold by the trustee; and avers that the said judgment is a lien on the said lots; and says that he is entitled to be subrogated to all the rights of the Bank of Pine Grove, to said judgment and lien on the same, for so much of said judgment as was paid by him; and prays that the court will decree that he be subrogated to all the rights and benefits of said judgment and the lien thereof, or to so much thereof as he was forced to and did pay; and asks that the said deed of trust and sale thereunder be set aside, but in so far only as plaintiff's right is concerned; and that the said real estate be sold to pay the liens thereon. The bill also alleges that the land will not rent for enough in five years to pay the judgment.

The defendants Long, T. M. McIntire, Trustee, and E. E. McIntire appeared and demurred to the bill. The court sustained the demurrer as to T. M. and E. E. McIntire, and dismissed the bill as to them; and overruled it as to Long, who filed an answer. The bill was taken for confessed as to the other defendants. The defendant Long assigns the following reasons for his demurrer:

First; Because it is a creditor's bill to enforce a judgment, and it is imperative that before the creditors may resort to equity there must have been issued an execution and returned "no property," except where no execution issued within two years. This objection is not well taken. In this case there was an execution, and money paid. Bassett, one of the execution debtors, paid most of the debt, and alleges that he paid it as surety for the others, and now seeks in equity to enforce the lien against his principals. There could be no further execution on this judgment.

Second; Counsel for Long also insists that the bill is demurrable because it does not contain sufficient allegations to charge the real estate in his hands, and because the exhibits do not constitute constructive notice of any rights of subrogation in Bassett. "A purchaser of property, with notice of a right in a surety to charge the same, by way of subrogation, takes it subject to such equitable right." George v. Grim, 66 W. Va. 421. This notice may be actual or constructive.

While the abstract of the judgment does not show that Bassett claimed the right to be subrogated to the rights of the judgment creditor against the defendant Mary L. Streight, and such abstracts never do show this, yet it does show that there was a judgment against her. The note upon which the judgment was obtained being negotiable, suit was brought against the payees as well as against the maker of the note. The judgment was recorded in the office of the clerk of the county court of Wetzel County, and the record does not show that it has been paid. In fact the record would show a judgment unpaid. It may be said that upon inquiry of the justice of the peace, or by an examination of the...