Train v. Emerson

• Decision Date: 10 December 1913
• Parties: TRAIN ET AL. v. EMERSON.
• Court: Georgia Supreme Court

80 S.E. 554

141 Ga. 95

TRAIN ET AL. v. EMERSON.

Supreme Court of Georgia

December 10, 1913

Syllabus by the Court.

Three of four sureties, who have paid the debt of their principal may jointly sue their cosurety for contribution, founding their action upon the obligation containing the contract of suretyship, and will have the same time within which to bring suit as the creditor would have had on the same instrument.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by W. F. Train and others against C. A. Emerson. Judgment for defendant, and plaintiffs bring error. Reversed.

O'Byrne Hartridge & Wright, of Savannah, for plaintiffs in error.

F. P McIntire, of Savannah, for defendant in error.

EVANS P.J.

Three of four sureties of an insolvent principal, who had paid the principal's debt, sued the other surety to recover, on the note which contained the contract of indebtedness one-fourth of the amount so paid. The suit was brought more than four years after the payment, and within six years of the maturity of the note; and the question is whether the action is barred. If the suit is good as one on the note, then the period of limitation is six years, and the sureties paying the note are not barred of their right to have contribution of their cosurety. On the other hand, if the plaintiff's right to contribution can only be predicated on an implied promise of reimbursement, springing from the fact of payment alone, the limitation period within which the action must be brought to enforce the liability is four years.

It is the doctrine of the civil law, and was the doctrine of the English courts of chancery in Lord Hardwicke's day and at the time of the Revolution, that the surety is entitled, upon payment of the debt of his principal, not only to have full benefit and control of all securities which the creditor has taken to assure his debt, but also to be substituted, as to the very debt itself, to the creditor and to have it assigned to him. Ex parte Crisp, 1 Atk. 133; Morgan v. Seymour, 1 Ch. R. 64. Subsequently the English chancery courts beginning with Capis v. Middleton, 1 Tur. & Russ. 224, while admitting the general doctrine that a surety paying his principal's debt is subrogated to every remedy which the creditor has, and to have an assignment of all securities in the hands of the creditor, yet denied him the right of substitution to the obligation on which he is surety, upon the technical idea that the obligation was extinguished by the payment. The divergence of the English courts was upon the effect of payment; in the earlier cases it was held that by payment the surety was entitled...