Smith's Executors v. Anderson

An original judgment is not merged or destroyed by a judgment of supersedeas: the plaintiff may pursue his remedy at his option, either on the original or supersedeas judgment, the only restraint being, that he shall have but one satisfaction for the same debt. Where a judgment against three, one being principal and the other sureties, is superseded by the original defendants, with two others as sureties, all the original defendants are principals as to the sureties in the supersedeas judgment. The sureties of the original debtor are not co-securities with the new parties in the supersedeas judgment, in the sense in which the term, co-surety,, is used in the law with reference to the right of contribution. The right of contribution, as between sureties, arises out of the principles of equity and justice, which grow out of the relations of the parties to each other. Where a party admits his liability to contribution, and offers to pay his share into court, and thus exempt himself from further interest and costs, he should be allowed to do so: such a proceeding is consistent with justice, and sanctioned by the practice of courts of equity. Where an order of a court of equity is passed in a cause for contribution, in term time, allowing one of the defendants to bring into court his share, the complainant is chargeable with notice of such order.

Appeal from the Equity side of the Circuit Court for Frederick County. William P. Anderson, as principal, and Absalom Anderson and John H. M. Smith, as his sureties, executed a bond to John H. Anderson, who, in November 1851, obtained judgment against William and Absalom, as surviving obligors of Smith, for the amount of the bond. This judgment was, in due form of law superseded, February 26th, 1852, by the defendants therein, and Jesse Wright and Henry Clary. The obligee, John H. Anderson,. also recovered, February 24th, 1853, a judgment, on the same bond, against the executors of Smith, and a fi.fa. being issued on this judgment, the executors paid $641.TU, the full, amount thereof, to the plaintiff’s attorney, who, on the 4th of January 1853, executed an assignment to them of the supersedeas judgment above mentioned. These executors then, on the 16th of May 1854, filed their bill in this case, against the plaintiff, and' all other parties to these judgments, praying that \he plaintiff, John H. Anderson, might be ordered to assign the supersedeas judgment to the complainants, and for contribution from Absalom Anderson, Jesse Wright and Henry Clary, as co-sureties with complainants’ testator. Wright and Clary, in (heir answer, deny the right of the complainants to an assignment of the judgment, or any right to contribution from them, they being mere sureties for Wm. P. Anderson and Absalom Anderson, the co-surety with Smith'. Absalom Anderson, in his answer, asserts the insolvency of Wm. P. Anderson, admits his own liability for one-half the debt, and judgment paid by the complainants, and avers that, before the bill was filed, he tendered them said moiety, and offers to bring the same into court as his full portion as co-surety with Smith. John H. Anderson in his answer, denies that the complainants have any right at law or in equity, to call on him far an assignment of the supersedeas judgment. At the July term 1854', on the 3rd of that month, the court, on petition of Absalom Anderson, passed an order that he bring into court the sum of §377.91, the amount of one-half of the principal, interest and costs, paid by the complainants, and of interest thereon, and of the costs of this suit to the date of the order, and this sum was- accordingly paid into court. The caoe was set down for hearing on bill, answers and replication, and the-court (Nelson, J.) passed a decree, that the complainants were not entitled to an assignment of the supersedeas judgment, nor to contribution from Wright and Clary, but are entitled to contribution from Absalom Anderson, and that he pay the complainants one moiety of the judgment and costs paid by them, with interest, thereon to the 3rd of July 1854, and complainants’ costs in this suit to that day, and that the costs accruing since that date be paid by the complainants, and that the fund brought into court by him, under it® order of that date, be delivered and paid to the complainants. From this decree the complainants appealed. 1st. Was the assignment of the supersedeas judgment to the complainants good- and valid, either at common law or under the Act of 1763, ch. 23, so as to entitle them to the relief they seek in equity? It was unquestionably a right or claim which John H. Anderson could assign to any one he pleased, and give to the assignees all the right he had to it, and he did, by his authorised attorney, assign the same in writing, tinder hand and seal, to the complainants. All chases in action may be assigned in equity,independent of the Act of 1763, and the assignees can enforce payment of them, and a court of law will protect equitable assignees in all cases where the assignment is bona fide. 4 Mass:, 511, Dix, et al., vs. Cobb. 1 Wheat., 236, Welch vs. Mandeville. 17 Johns-.,. 284, Prescott vs. Hull. I JBac. Abr., 249,250: An assignment for a valuable consideration may be by parol. This assignment,-then, can only be defeated and vacated by the defendants in the superdeas judgment, by some superior equity to that of the complainants under the assignment. 2nd. The complainants paid this judgment and took an assignment of it, and what superior equity can the defendants in that judgment'have, to defeat-the bona fide assignees thereof? The supersedeas judgment takes the place of the original judgment, and is a merger ol it,-and of the bond, the original cause of action, and the complainants- were absolved from all obligation, by reason of the co-suretyship of Absalom Anderson and:Smith, their testator.- The assignment clothed the assignees-with all the rights of the assignor, both at Jaw and in equity.The case of Creager vs: Brengle, 5 H. óf J., 244, is conclusive upon this question-, The assignee or purchaser is subrogated to all the rights and remedies of the assignor. 11 G. Sf .J-, 114, ColegateJs Case. 2 Vernon, 609, Parsons vs. /hid dock. 2 PI. Sf J., 238, Norwood vs. Norwood. The cases of ISemmes vs. Naylor, 12 G. &f J., 359, and Hollingsworth vs. Floyd, 2 H. if G., 87, when carefully examined, will be found not to be applicable to this case; there was no written assignment in either of them as in this. The assignment here to the complainants, stands upon precisely the same principles as if it had been made to any one else, and they claim the right to enforce payment of (he whole judgment, unless the defendants can show spine superior equity. 3rd. But. if I am wrong in these views, in relation to the right of subrogation and merger, still the complainants are entitled to contribution. Wright and Clary became superseders to secure the same identical debt due on the bond for which the superseded judgment was rendered. It is admitted that contribution between sureties arises from principles of equity, independent of contract. It exists between all sureties for the same debt, whether engaged jointly or severally, or all in one instrument, or in several, and whether the one has knowledge of the other’s engagement or not, because in all these cases a payment by one surety of the debt secured, is equally a benefit to all the others. 1 Siorifs Eq.,sec. 495. 2 Bos. Pull., 270, Peering vs. Earl of Winchelsea. 1 Saund. Rep., 264, note. 14 Ves., 166, Craythorne vs. Swinburne. 5 Dana, 110, Breckenridge vs. Taylor. 4 Johns. Ch. Rep., 334, Campbell vs. Mesier. This question has been finally settled in this State by the case of Craig, et al., vs. Ankeney, 4 Gill, 231. For whose debt, then, did Wright and Clary become sureties? • Most certainly for the debt of William P. Anderson, the same debt for which also Smith and Absalom Anderson were sureties. It is said Wright and Clary became sureties for Absalom Anderson. This is not so, Absalom was only the surety for William P., who owed the money and was the real debtor. They became superseders as sureties for William P. Anderson, and stayed execution of the judgment for six months. 4th. The ex-parte proceeding of Absalom Anderson, in procuring an order to compel himself to bring the money into court, can have no binding operation upon the complainants. This order was procured without a partiele of evidence or law to substantiate it, and is clearly erroneous. 1st. At common law, when one of obligors pays the debt, his remedy is by an action'of assumpsit: he has no right to an assignment of the bond. 7 Gill, 34, Carroll vs. Bowie. At law the bond is extinguished by payment by the surety. 1 White Sp Tudor's Lead. Cases in Equity 84. 1 Turn. Sp Russ., 224, Copis vs. Middleton. Nor does the Act of 1763, ch. 23, authorize, in this case, such assignment by the creditor to the surety. The 8th section authorizes assignments of judgments in two cases, 1st, where a surety pays a judgment he is entitled to an assignment by the creditor against the principal; 2nd, when the judgment is rendered against several sureties, and one pays, he is entitled to an assignment against his cosureties: which is not the present case. As to the construction of the 7th section of this Act, see 7 Gill, 41. 2nd. The appellants not being entitled to an assignment of this judgment, they are not entitled to an assignment in equity, of the supersedeas judgment. Absalom Anderson and Smith were co-sureties for William P. Anderson, each being liable to the other for contribution, upon the failure of the principal to pay the debt. In the supersedeas judgment Wright and Clary are sureties for William P. Anderson and Absalom Anderson alone, and therefore do not stand in the relation of co-sureties with Smith for William P. Anderson. The case of Norwood vs. Norwood, 2 H. Sp J., 238, was the case of an assignment of a judgment where both parties were co-obligors. The cases of Southeren vs. Reed, 4 H. Sp J., 307, and Merryman vs. The State, 5 H.Sp J., 423, were cases of assignments of judgments against the principal debtor alone. The precise point in this case is decided in Hollingsworth vs. Floyd, 2 H. Sp G., 87, and in Semmes vs. Naylor, 12 G. Sp J., 361. In Creagervs. Frengle, 5 II. Sp J., 241, the court refused relief by ordering an assignment of the judgment against the bail. The case of Colegate vs. *'Savings Ins., 11 G. Sp J., 141, is not. analogous: it is a legal assignment, against the principal debtor. In this case there has been no legal assignment; the assignment of the attorney is but an equitable assignment. 2 H. Sp J. 238. In Creager vs. Brengle the court refused to aid the equitable assignee of the judgment. Substitution is not by contract, but is a creature of equity, and what equity have the complainants to an assignment of the supersedeas judgment against his co-surety, and the superseders, whose liability was not contemplated when Smith became the surety of William P. Anderson? 3rd. The complainants are not entitled to contribution against Wright and Clary, sureties in the supersedeas judgment. It is admitted that contribution exists when persons are sureties for the same person and the same debt, although bound by different instruments executed at different times. 4 Gill, 225, Craig, et al., vs. Ankeney. The error of the complainants in this case is, in assuming the proposition that the judgment superseded by Wright and Clary, is the same identical debt, and for the same person for whom Smith originally became surety. Absalom Anderson, Wright, Clary and Smith, are not co-sureties for Wm. P. Anderson, 1st, because if so, should the complainants recover, as contribution, one-fourth of the debt from each of these parties, Wright and Clary would recover the same amount from Absalom Anderson, as they superseded the judgment from him, as well as Wm. P. Anderson, they being his sureties; 2nd, because if Wrright and Clary pay the supersedeas judgment in full, they are entitled to full indemnity, not contribution, from Absalom Anderson. 2 H. Sp G., 87, Hollingsworth vs. Floyd. 12 G. Sp J., 358, Semmes vs. Naylor. 1 White Sp Tudor’s Lead. Cases in Equity, 95, and cases there cited.