Simpson v. Mcphail

• Decision Date: 30 November 1885
• Citation: 17 Ill.App. 499,17 Bradw. 499
• Parties: DOUGLAS SIMPSON ET AL.v.JOHN MCPHAIL.
• Court: United States Appellate Court of Illinois

17 Ill.App. 499

17 Bradw. 499

DOUGLAS SIMPSON ET AL.

v.JOHN MCPHAIL.

Appellate Court of Illinois, Third District.

November Term, 1885.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Montgomery county; the Hon. J. J. PHILLIPS, Judge, presiding. Opinion filed December 4, 1885.

Messrs. MILLER & MCDAVID, for plaintiffs in error.

Mr. A. N. KINGSBURY, for defendant in error.WALL, P. J.

This was a bill in chancery filed by defendant in error against plaintiff in error, in the Circuit Court of Montgomery county, on the 13th day of January, 1883. The bill alleged that on the 18th of March, 1864, Davis, Haskell & Co. recovered judgment in said circuit court against Spartan Gresham and John Simpson as principals, and defendant in error as their surety upon a promissory note for $1,250.27; that said Gresham and Simpson were insolvent when the judgment was rendered; that said Simpson died December 13, 1864, leaving his widow and the plaintiffs in error, his children, and being seized of a tract of land containing forty acres, which land, describing it, was the homestead of said Simpson, and had been so occupied by his widow and children since his death; that the widow had since died and the youngest child had reached the age of twenty-one years; that the land, at the time of Simpson's death, was not worth over $1,000, but had become of more value at the time the bill was filed; that on the 20th day of December, 1864, the defendant in error paid the judgment, interest and cost in full, which amount had never been repaid to him, and prayed that the complainant might be subrogated to the rights of the plaintiff in the judgment, and that he might have a lien on the land for the payment of the same, etc., etc.

The answer admitted the judgment but not the payment thereof; the death of Simpson leaving widow and children, and the land; the subsequent death of the widow; that the youngest child had attained the age of twenty-one years; relies upon the Statute of Limitations, two years, five years and seven years, and denies that complainant is entitled to relief as prayed in the bill.

The court, upon a hearing, entered a decree reviving the judgment for the use of the complainant, subrogating him to the rights of the plaintiff therein, and ordering a sale of the property in payment of the sum so found due for the judgment, interest, and cost. Error is assigned upon this decree.

A surety, who pays the debt of his principal, acquires a right of action against his principal, and may enforce it by the appropriate remedy at law. He may also invoke the aid of a court of equity, and be subrogated to the right of the creditor in any securities held by him against the principal, including the lien of a judgment in favor of the creditor against the principal and surety upon the original debt.

By the mere fact of payment the surety becomes the equitable assignee of all collateral securities, and, when necessary for his protection, of the principal undertaking itself. 3 Pomeroy's Eq. Jur. section 1419 and note.

While the surety may thus have equitable relief, he is not absolved from the operation of the rules which are applied as to other suitors. It is one of the usual and ordinary conditions of relief administered in a court of equity that those who seek its aid shall have been diligent in the assertion and prosecution of their demands, and it has therefore become a settled doctrine that where a surety who has paid the debt does no act before his claim is barred at law by the Statute of Limitations, manifesting an intention to put himself in the place of the creditor, and thereby subrogate himself to the creditor's rights, equity will not subrogate him to those rights. It is a general rule also that...