Crawford v. Richeson

• Decision Date: 18 January 1882
• Parties: MONROE C. CRAWFORD et al.v.RICHARD RICHESON et al.
• Court: Illinois Supreme Court

101 Ill. 351

1882 WL 10168 (Ill.)

MONROE C. CRAWFORD et al.

v.RICHARD RICHESON et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Perry county; the Hon. W. H. SNYDER, Judge, presiding.

The bill in chancery in this case alleges that Marion D. Hoge was collector of taxes of Franklin county for the year 1867; that on December 5, 1867, he gave bond, as required by the statute, for the faithful performance of his duties as such collector, which was duly approved and recorded, and that the bond was signed by the complainants, and Daniel Mooneyham and Lewis G. Payne, as sureties for Hoge; that there came to the hands of Hoge, as such collector, a large sum of money belonging to Franklin county, which he failed to account for, and that a judgment was afterwards rendered in the Franklin county circuit court against Hoge and his sureties for the amount due the county, which judgment the complainants and said Daniel Mooneyham paid and discharged; that the collector was also in default in regard to taxes due the State which he had collected, for which the State recovered judgment in the Supreme Court against him and his sureties, and which was not paid at the time of filing the bill. A supplemental bill was filed, showing that since filing the original bill the latter judgment had been paid and discharged by the complainants and Mooneyham.

The bill alleges that at the date and recording of the bond the collector was the owner of two certain parcels of real estate described in the bill, and that after the date and recording of the bond he became the owner of certain other parcels of real estate, which are described in the bill, with a statement of the date on which he acquired title to each tract, after the recording of the bond; and that the collector sold and conveyed all his real estate before either of the aforementioned judgments was recovered. The bill charges that the bond of the collector, from and after the time it was recorded, became a lien on all the real estate which he owned at the time the bond was recorded, and also upon all the real estate subsequently acquired by the collector, and that the lien is still in force; that Hoge, the collector, and the said Lewis G. Payne, one of the sureties, are both insolvent, and that neither of them paid any part of said judgments. Hoge, and all those claiming title to these lands through him, and the said Payne and Mooneyham, are made defendants to the bill. The prayer is, that enough of the real estate to pay the judgment in the Supreme Court in favor of the State be decreed to be subject to the judgment, and be sold to pay the same, and that the remainder of the real estate, or so much as may be necessary, be sold to pay the complainants, with interest, the amounts by them paid on the judgment in favor of Franklin county. Answers were filed denying the allegations of the bill, proofs taken, and upon hearing, the court decreed according to the prayer of the bill, and that the lands be sold in the inverse order of their alienation by Hoge. The defendants appealed.

Messrs. DUFF, CRAWFORD & WILLIAMS, for the appellants:

The statutory lien of a collector's bond does not extend to after-acquired lands. Calhoun v. Snyder, 6 Binn. 135; Roads v. Simms, 1 Ham. 281; Harrington v. Sharp, 1 G. Green, 131; Freeman on Judgments, sec. 367.

Liens of this kind are strictly construed. Brady v. Anderson, 24 Ill. 112; McCoy v. Morrow, 18 Id. 523; Canal Co. v. Gordon, 6 Wall. 561.

By accepting and appropriating another indemnity after the default, the complainants lost all right of subrogation to any security in favor of the State. Cooper v. Jenkins, 3 Beav. 337; Cornwell's Appeal, 7 Watts & S. 305.

By appropriating this indemnity they lost the privilege of sureties, and became principals to that extent. Smith v. Steel's Estate, 25 Vt. 427; Chilton v. Robbins, 4 Ala. 22; Silvey v. Dowell et al. 53 Ill. 260; Cogswell v. Ruggles, 62 Id. 402.

The right of subrogation by a surety never exists until the whole debt is actually paid. Field v. Hamilton, 45 Vt. 35; Gilliam v. Erselman, 5 Sneed, 86; Magee v. Leggett, 38 Miss. 139; Brandt on Suretyship, sec. 261.

The appellees, by agreeing to the extension of time to Hoge, and stipulating that it should not work their release, waived all right of being subrogated to any supposed lien against the lands of third parties not consenting to the extension. They thereby assumed new relations to the State. Bailey v. Brownfield, 8 Harris, 41; Oakley v. Parsheller, 10 Bligh, N. R. 548; Lime Rock Bank v. Mallett, 34 Maine, 547; Story's Equity Jur. sec. 502b.

The suspension of the remedy is a waiver of the lien, between creditors and third parties. Au Sable River Boom v. Sanborn, 36 Mich. 358; Howe v. Frazier, 2 Rob. (La.) 424; Hartwell v. Smith, 15 Ohio, (N. S.) 200; Wilbur v. Ross et al. 26 Ill. 221.

But further, the State, by this extension of time to Hoge, released and discharged all his sureties who did not agree to the extension. Davis v. People, 1 Gilm. 409; People v. McHatton, 2 Id. 638; Johnson v. Harker, 8 Heisk. 388; Brandt on Suretyship, sec. 296.

Where property is subject to answer for the debt of another person, it occupies the position of a security or guarantor, and anything which would discharge an individual security, will, under similar circumstances, discharge such property. Robinson v. Magee, 1 Vesey, Sr. 251; Royal C. B. v. Payne, 19 Grant's Ch. 180; Christener v. Brown, 16 Iowa, 130; Denison v. Gibron, 24 Mich. 187; Rowan v. Sharp's Rifle Co. 83 Conn. 1; Union Bank v. Govan, 10 Smedes & Mar. (Miss.) 333; White v. Ault, 19 Ga. 551; Ryan v. Shaw, 14 Ill. 20.

And where land subject to a judgment lien is sold by the judgment debtor to a third party for its full value, such land occupies the position of security, and is subject to be discharged from the judgment lien by the acts of the creditor, like any other security. Barnes v. Mott, 64 N. Y. 377; Leffingwell v. Freyer, 21 Wis. 392; Lowery v. McKinney, 68 Pa. St. 294.

If by this extension of time to Hoge the State lost its lien on these lands, then it had no rights in this subject to which appellees could be subrogated.

As to the right to enforce the statutory lien against lands in case of an exchange, counsel referred to the rule as to dower, showing it could be enforced only as to one tract. 1 Scribner on Dower, 271; Park on Dower, 261; 1 Hilliard on Real Estate, 168; Butler & Baker's Case, 3 Leon. 271.

A judgment creates no lien against the homestead. Green v. Marks, 25 Ill. 221; Pardee v. Lindley, 31 Id. 174; Hartwell v. McDonald, 69 Id. 293. Nor does the lien given by this bond attach to the homestead. Hume et al. v. Gossett, 43 Ill. 297.

Nor does this section 5 of the Revenue law “in any way affect the homestead estate.” Trustees of Schools v. Harvey et ux. 94 Ill. 394.

That a judgment debtor may acquire a homestead free from the lien of any judgment against him, see Campbell v. McManus, 32 Texas, 442; McManus v. Campbell, 37 Id. 267; Cipperly v. Roads, 53 Ill. 346; Culver v. Rogers, 28 Cal. 250; Edmonson v. Meacham, 50 Miss. 35; North v. Shearn, 15 Texas, 174; In re Henker, 2 Sawyer, 305; Hawthorn v. Smith, 3 Nev. 182; Thompson on Homestead, secs. 305, 306; Monroe v. May, 9 Kan. 466; Edwards v. Fry, 9 Id. 417.

Mr. W. H. WILLIAMS, for the appellants Overturf, Biby, and the heirs of John McFall, made the following among other legal points:

The right to be subrogated depends upon principles of equity, and not upon contract. Mathews v. Aiken, 1 Comst. 595; Salmon v. Clagett, 3 Bland's Ch. 173; Kirkpatrick v. Howk, 80 Ill. 122.

The right of subrogation is an inherent and natural equity, growing out of the circumstances of the case. 24 Miss. 665.

And subrogation is the transfusion of one creditor to another, with the same or modified rights. Burrell's Law Dict., title “Subrogation.”

And hence the sureties can obtain no greater right, or attain a better position as regards the principal debtor, than was held by the original creditor. If the creditor has taken collateral security, he holds the same as trustee for the benefit of the sureties. 1 Story's Equity, 477, et seq.; Kirkpatrick v. Howk, 80 Ill. 122; Hall, Admr. v. Hoxsey et al. 84 Id. 618; Phares v. Barbour, 49 Id. 370.

And if the creditor, without the consent of the surety, releases or discharges such collateral security, the surety is discharged to the extent of such collateral security. Rogers v. School Trustees, 46 Ill. 428; Hall v. Hoxsey, 84 Id. 618; Phares v. Barbour, 49 Id. 370. And we hold the converse of the proposition to be true, that if the creditor, with the consent of the surety, releases such collateral security, such surety is not discharged.

An extension by a creditor to his debtor is a discharge of the surety not consenting thereto. Woolford v. Daw, 34 Ill. 434; Crossman v. Wohlleben, 90 Id. 537; Davis v. People, 1 Gilm. 409; Waters et al. v. Simpson et al. 2 Id. 571; People v. McHatton, Id. 638; Governor v. Lagow et al. 43 Ill. 135.

Then, by consenting to this extension, the sureties are not released, and as to them the act of the legislature and their stipulation amounts simply to a suspension of the remedy. Parmelee et al. v. Lawrence, 44 Ill. 405; Parsons on Contracts, vol. 1, p. 27; Id. vol. 2, p. 27.

And if this had been a judgment lien, and an execution issued thereon and levied upon lands, and the levy released by and with the consent of the plaintiff in the execution, the lien would be gone, at least as to third parties who acquired title during the suspension. Freeman on Executions, sec. 271; Freeman on Judgments, sec. 379; AuSable River Boom v. Sanborn, 36 Mich. 358; Waters et al. v. Simpson et al. 2 Gilm. 574.

Mr. THOMAS J. LAYMAN, and Messrs. HAMMACK & DAVIS, for the appellees:

The statute making the bond a lien was to secure public rights, and it seems clear that the legislature, by using the same language in making the bond a...