Harbin v. Aaron

SOMERVILLE, J. The case of Tennessee Valley'Bank v. Aaron [Aaron v. R. T. Thornton and Tenn. Valley Bank) 213 Ala. 29 104 So. 135, was a suit in equity by the complainant herein for subrogation to the county’s lien on the land of Thornton, defaulting tax collector, conveyed by him to Tennessee Valley Bank; Thornton being identical with the Thornton here involved, and Aaron being a surety on the identical bond here involved. So far as essential allegations are concerned, the bill of complaint herein substantially follows the bill of complaint in that case, where we held that it sufficiently alleged every fact necessary to establish a lien in favor of Winston county, and also to establish complainant’s right to subrogation to the lien *220 of the county, by reason of bis payment of the judgment recovered by the county against Thornton and the several sureties on his bond. Most of the grounds of objection urged against the bill herein are based upon a single fact, apparent upon the face of the bill, viz. that Thornton executed and filed his official bond after September 1, 1917, the time within which 'he was required by law to file it; the theory of the demurrer being that the office was thereby rendered vacant, that Thornton took and held the office without right, and was an intruder and -usurper merely, and that his official bond, the foundation of Aaron’s equity asserted herein, though binding on the principal and sureties, on the principle.of estoppel, infávor of the obligee and any person who might be aggrieved by its breach, was not binding on third persons, and could give no rights to the obligors against such persons. These objections to the bill of complaint were not made in Tenn.‘Valley Bank v. Aaron, supra, and of course were not considered. We have read with care and interest the ingenious arguments presented by counsel for appellant in support of these grounds of demurrer. They are grounded, we think, upon two fundamental errors: (1) They overlook the principle that estoppels are and must be mutual; and (2) they assume that a purchaser of the -defaulting officer’s property is an innocent third person. On the contrary, such a purchaser stands in privity with his vendor. As to the property purchased, his rights are exactly the same as the rights of his vendor, and the property is subject to the same liabilities to which it was subject in the hands of his vendor. When the county recovered a judgment against Thornton and his sureties, it conclusively established the fact and amount of its lien upon the property of Thornton, not only against Thornton, but also against his privies in estate — all persons who claimed title through Thornton by purchase after the lien of the bond had attached to his property. Comer v. Shehee, 129 Ala. 588, 595, 30 So. 95, 87 Am. St. Rep. 78; 34 Corp. Jur. 1010, § 1432. It is conceded that the bond was effective in favor of the county, and that the county, by virtue of the bond, acquired a lien upon the property of Thornton to the extent of his defalcations. The only question, then, is whether Aaron’s payment of the county’s judgment against Thornton entitled him to subrogation to the county’s claim as judgment creditor against the defaulting officer. Section 9567 of the Code (section 5408, Code of 1907) declares: “Whenever a judgment is- obtained by a creditor on a demand to which there are one or more sureties, the sureties may pay such de- * mand; and the same shall by operation of law be transferred to the surety or sureties paying or satisfying such demand, who shall have all the liens or equities of such judgment or decree and of the debt or claim on which the same is founded, * * * and may assert, in law or in equity, any lien or right against the principal debtor, which the plaintiff could have asserted if the debt had not been paid.- This provision is unquestionably applicable here, and is, indeed, but an elaboration of the general equitable doctrine of subrogation, often recognized and enforced by this court. The objection that the land here sought to be subjected to the lien of the bond lies in another county than Winston, wherein the defaulting officer served, and is therefore not within the operation of the statute creating the lien, cannot be sustained. The statute (section 1491, Code of 1907; section 2603, Code of 1923) makes the bond “a lien upon the property of the principal from the date of its execution.” It does not restrict the lien to property within the county of the officer’s domicile, and the courts are without authority to ingraft such a restriction upon it. Nor is there any merit in the objection that the bill does not allege that Aaron has not been reimbursed for the money paid by him to the county in satisfaction of its judgment. There is no presumption of such a reimbursement, and it is defensive matter, to be alleged and proved by respondent, if it be a fact. For the reasons stated, we hold that the demurrer to the bill was properly overruled, and the decree will therefore be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BOULDIN, JJ„ concur.