McCormick's Administrator v. Irwin
| Decision Date | 01 January 1859 |
| Citation | 35 Pa. 111 |
| Parties | McCormick's Administrator versus Irwin. |
| Court | Pennsylvania Supreme Court |
The familiar doctrine of subrogation is, that when one has been compelled to pay a debt which ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other. To the creditor, both may have been equally liable, but if, as between themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditor's security to obtain reimbursement. The reason why subrogation is not allowed to one partner as against his copartner, or to one merely a joint debtor as against his co-debtor, is because that, as between them, there is no obligation to pay the debt resting upon one, superior to that which rests upon the other. The doctrine does not depend upon privity, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay. To effect this, the latter is allowed to take the place of the creditor, and make use of all the creditor's securities, as if they were his own.
In the light of these principles, we discover no error in the charge of the court below. It was a substantial answer to all the points propounded by the plaintiff in error, which arose out of the cause, and it was correct. Smythe, it is true, obtained his decree against both Irwin and Whittaker, but the agreements between them, given in evidence, established, that long before the decree, as between them, the primary or superior obligation to pay the sum decreed, lay upon the latter. He had covenanted with Irwin to pay it, and the effect of the covenant was to make himself the principal. Of course Irwin, after having paid the debt, became entitled in equity to the use of Smythe's decree, obtained against the principal, and not only to that, but to every remedy to enforce its payment which Smythe had against Whittaker's sureties, who became such after he assumed the superior obligation to pay.
The case of Burns v. The Huntingdon Bank, 1 Penn. R. 395, rules that a surety in an original obligation, who has paid the debt, is entitled to a cession, not only of the creditor's judgment against the principal, but also of his claim against a subsequent surety of the principal for a stay of execution. A similar decision was made in Pott v. Nathans, 1 W. & S. 155. There the creditor took a promissory note as a collateral security for the payment of a judgment which he had obtained against a principal debtor. The original surety, having paid the judgment, was subrogated to the right of the creditor to the note. That was subrogation between sureties, for the drawees of the note were but sureties, but they were junior. The equities of such sureties are not equal.
Apply now these principles to the present case. McCormick was a surety, it is true; his obligation was secondary to that of Whittaker, so was...
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