Furnold v. Bank of Missouri

• Decision Date: 31 August 1869
• Citation: 44 Mo. 336
• Parties: THOMAS C. FURNOLD, Defendant in Error, v. THE BANK OF THE STATE OF MISSOURI et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

44 Mo. 336

THOMAS C. FURNOLD, Defendant in Error,

v.THE BANK OF THE STATE OF MISSOURI et al., Plaintiffs in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

Jas. McFerran, for plaintiffs in error.

The Circuit Court erred in substituting the defendant in error in the place of Thomas Preston as co-security, and in holding that the defendant in error had a right to have the lien revived, and his claim enforced against the land of Selby, Cox & Gifford.

Asper & Pollard, for defendant in error.

I. In this case plaintiff stands in the same situation as a surety, and is entitled to the same equities. (1 Sto. Eq. § 638; Chesebro v. Millard, 1 Johns. Ch. 409; King v. Baldwin & Fowler, 2 Johns. Ch. 554; Moses v. Murgatroyd, 1 Johns. Ch. 119; Hays v. Ward, 4 Johns. Ch. 130; Curtis v. Tyler, 9 Paige, 32; Miller v. Woodward & Thorne, 8 Mo. 169; Crump v. McMurtry, id. 408; Cole County v. Angney, 12 Mo. 132; Seeley's Adm'r v. Beck, 42 Mo. 143.)

II. Where land is charged with a burden, the charge ought to be equal, and each part must bear its equal proportion; and the court will compel the creditor to aid this right of contribution by assigning his bond or security to the surety or owner of the land, who has to pay the debt. (Stephens v. Cooper, 1 Johns. Ch. 425.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in equity, seeking to subject certain lands owned by some of the defendants to the payment of a ratable sum which the plaintiff had been compelled to pay by reason of a lien existing on his land, and to require the Bank of the State of Missouri to assign certain claims and judgments to plaintiff.

It appears from the record that one Francis Preston borrowed a sum of money from the Bank of the State of Missouri, at Chillicothe, and that Thomas A. Preston, Hudson, and Austin, all of whom are made defendants, were his securities for the payment of the money. Francis Preston, the principal, died, and the bank proved up the demand against his estate. The administrator of Preston, deceased, paid a portion of the demand; and the balance remaining unpaid, suit was commenced against the sureties, and judgment recovered. After the rendition of the judgment, and while the same continued a lien on the realty, Thomas A. Preston, one of the defendants, for a full consideration, sold and conveyed his land to the plaintiff. The other two sureties also possessed real estate, on which the judgment constituted a lien. Before the expiration of the lien, the bank sued out execution on its judgment, and levied the same on the lands owned by the plaintiff, and which he had purchased of Thomas A. Preston. Plaintiff, to protect himself and keep his lands from being sold, paid up the full amount and satisfied the execution, and then applied to the bank to assign to him the judgment against the defendants, on which execution had been issued and the land levied upon, and also the claim against the estate of Preston, deceased. Previous to this, and while the lien was subsisting, Hudson and Austin sold and conveyed their real estate to Selby, Cox & Gifford, who are made parties to this suit. The plaintiff, in his petition, alleged the insolvency of Hudson and Austin; a confederacy and combination on the part of the defendants to cheat and defraud him, and to compel him to pay the whole of the debt; and prayed that the land formerly owned by Hudson and Austin, and purchased by Selby, Cox & Gifford, might be subjected to a ratable proportion of the debt, and that the bank be compelled to assign to him the judgment and claim before mentioned. There was a demurrer to the petition, which was overruled; and no answer being filed, judgment was given in substantial compliance with the prayer, which judgment was affirmed in the District Court.

This suit was instituted before the judgment lien expired, but it is contended for the plaintiffs in error that the proceeding is not sustainable; that the payment by the plaintiff operated as a complete discharge of the debt and a full extinguishment of the lien, and that it can not be further revived and extended; and that plaintiff's only recourse is an action against his grantor, who, it is alleged in the petition, is insolvent.

It has been uniformly declared and fully acted upon, in the courts of chancery in this country, that the claim for contribution among co-sureties, as well as the claim for indemnity on the part of the surety against the principal, is founded not upon contract, but upon a principle of natural justice and equity; the maxim adopted in regard to co-sureties being that equality is equity among persons standing in the same situation. (1 White & T. Lead. Cas. in Eq. 105, Am. note.) This equity springs up at the time the relation is entered into, and is consummated when the surety has paid the debt. (Wayland v. Tucker, 4 Grat. 268.)

The practice of subrogation or substitution, or the cession of remedies, is borrowed from the civil law, and, under the guidance of Chancellor Kent, has gone further in this country than in England. It is the creature of equity, and...