Montgomery v. Vicory

• Decision Date: 30 March 1887
• Citation: 11 N.E. 38,110 Ind. 211
• Parties: Montgomery and others v. Vicory.
• Court: Indiana Supreme Court

110 Ind. 211

11 N.E. 38

Montgomery and others

v.Vicory.

Supreme Court of Indiana.

March 30, 1887.

Appeal from circuit court, Morgan county.

Wm. R. Harrison and G. W. Grubbs, for appellants. Adams & Newby and Jordan & Mathews, for appellee.

ELLIOTT, C. J.

In the year 1872, Levi Frederick borrowed of Samuel M. Mitchell $2,500, and Harmon C. Vicory, Eli D. Whittaker, and Charles W. Vicory indorsed the note executed by Frederick to Mitchell as accommodation indorsers. Mitchell also borrowed from Sarah A. Goss $300, and the same indorsers became his sureties. In 1875, Frederick failed in business, and transferred his property to his indorsers, but, prior to doing so, mortgaged it to secure a loan of $2,500. The indorsers, Whittaker and the two Vicorys, assumed payment of Frederick's debt to Mitchell, and executed to him their promissory notes, with indorsers, and these notes were renewed at various times. Whittaker and Harmon C. Vicory became insolvent, and receiveddischarges in bankruptcy. On the eighteenth day of September, 1877, Mitchell recovered judgment on the note executed by the two Vicorys and Whittaker, and on the tenth day of the same month Sarah A. Goss obtained judgment on the note executed to her. Charles W. Vicory, the appellee, paid the amount of these judgments, and caused them to be assigned to him on the judgment docket. It was the intention and agreement of the judgment plaintiffs and the appellee that the judgment liens should be kept alive as against the land of Harmon W. Vicory. The sureties of Frederick realized nothing from the property transferred to them, as it was all exhausted by the prior mortgage. On the thirteenth day of October, 1877, the appellant and others obtained judgment against Harmon C. Vicory, and upon that judgment a sale of Harmon C. Vicory's land was made, under which the appellants claim title.

The judgments assigned to the appellee are superior in point of time, and, unless they were destroyed by the payment made by him, they must prevail against the title asserted by the appellants. The equities in favor of the appellee are very strong. He became originally involved as a co-surety with Harmon C. Vicory, and the note on which the Mitchell judgment rests was executed to secure money to pay off the liability incurred as surety for Frederick, and on that judgment he was equitably liable for only one-half, as Whittaker was totally insolvent. There was therefore not only a very strong equity in his favor, but there was also an express agreement that the Mitchell judgment and Goss judgments should be kept alive for his benefit. The general rule undoubtedly is that, where equity requires it, a lien will be kept alive. Hanlon v. Doherty, 9 N. E. Rep. 782. This general rule will govern here unless overthrown by the legal rule that payment by one primarily liable is an absolute satisfaction of the judgment. Laval v. Rowley, 17 Ind. 36;Klippel v. Shields, 90 Ind. 81;Shields v. Moore, 84 Ind. 440;Birke v. Abbott, 103 Ind. 1, 1 N. E. Rep. 485; Mathews v. Lawrence, 1 Denio, 212;Hogan v. Reynolds, 21 Ala. 56, 56 Amer. Dec. 236; Bartlett v. McRae, 4 Ala. 688; Harbeck v. Vanderbilt, 20 N. Y. 395;Booth v. Farmer's, etc., Bank, 74 N. Y. 228. These authorities require that it be held that the payment by the appellee of the Mitchell and Goss judgments was a satisfaction, notwithstanding the assignment to him of those judgments.

The appellee contends that the appellants are concluded by a judgment rendered in his favor in an action against Harmon C. Vicory and Eli D. Whittaker. One of the findings of the jury, which was adopted by the court, is that “the plaintiffs did appear to and make defense to the case tried in this court between Charles W. Vicory as plaintiff and Harmon C. Vicory as defendant, in the name of said defendants in said case, for their own benefit; that is, for the...