Conaway v. Odbert

Maxwell, J. The appellee claims the right to be substi_ tuted to all the rights of the administrator of Enoch P. Fitch, deceased, as well as to all the rights of Shipley, Roane & Co., as against the appellant Cfenaway as the first endorser of the negotiable note made by Ilaymond and endorsed by Conaway and Fitch. He claims that the judgment in the circuit court of Marion county, in favor of Shipley, Roane & Co. against Conaway and Haymond, is conclusive «against [36] the said Conaway in favor of the administrator of the said Fitch. I think there is no doubt but that Odbert is entitled to be substituted to all the rights and remedies of the administrator of the said Fitch as against the said Conaway, but being substituted to these rights and remedies, what are they? Has the administrator of Fitch if he had paid the judgment on the forthcoming bond in the Federal Court, the right to be substituted to the place of Shipley, Roane & Co. as to the judgment against Conaway and Iíaymond? I understand the rule to be that a surety paying the debt of his principal is entitled to be substituted to all the liens, sureties, rights and remedies of the creditor against such principal debtor, subsisting, at the time he became bound for the debt. Story’s Equity Jurisprudence, sec. 499; Powell vs. White, 11 Leigh, 309; Robinson et als. vs. Sherman et als., 2 Gratt., 178. A co-surety paying the debt of his principal debtor is entitled to Contribution against his co-surety and is entitled to all the liens, securities, rights, and remedies of the creditor against sueii co-surety to the extent of the relief that he is entitled to, but no further, ■" In this case Conaway and Eitch were not co-sureties for Haymond, but separate sureties, with a contingent liability, each separate and distinct from the other, jointly liable, it is true, to the holder of the note endorsed by' them, but as between themselves standing on their separate and distinct contracts, in which one may be liable and the other not liable. I think Conaway is not concluded by the judgment of Shipley, Roane & Co. against him,'but as against him his subsequent endorser must fix his liability as fully as if there had never been any judgment against' him. If this is not so he would be deprived of the right tó show he was a mere accommodation endorser for the benefit of Fitch, and that no consideration for his endorsement 'passed, which would be a good defen ce to him. 2 Parson oh'Rotes and Bills, 27. lie would be deprived of his right to raise objections to Hie consideration or want of consideration for the endorsement, to show setoffs and- equities against Fitch, to all of [37] which, he is entitled under the law. Galliot vs. Lynch, 2 Leigh, 503; Barker vs. Prentiss, 6 Mass., 432; Pearson vs. Pearson, 7 Johns., 28; Herrick vs. Carman, 10 Johns., 225; Schoonmaker vs. Roasa, &c., 17 Johns., 301. Any rule that would make the judgment against Cona-way and Iiaymond conclusive in favor of Fitch would make the judgment against Fitch conclusive in favor of Conaway, and if Conaway had paid the judgment against himself would entitle him to be substituted to the place of Staple}’, Boane & Co. in their judgment against Fitch, and thus enable Conaway to escape his liability as prior endorser which could not be done in that way. But when such liability is fixed against Conaway I see no reason why Odbert, being substituted to the rights and remedies of Fitch, might not be substituted to the place of Shipley, Boane & Co. as against Conaway, to the extent of said liability. But before this could be done Shipley, Boane & Co. would have to be made parties to the suit, which has not been done, I do not think there is anything in the objection that the forthcoming bond was void because it was founded on an execution issued at a time when it should not have been. This would probably have been sufficient cause to quash the bond if the objection had been made before judgment was rendered on it, but it is too late now. I do not think that Odbert is protected by the supposed assignment to him of the judgment against Conaway, because in the first place, Shipley, Boane & Co. are not parties to the suit; and in the next place if they were parties and the assignment regular in form it seems to me that it is not sufficient to deprive Conaway of his rights as against Fitch before referred to; in other words that the assignment of the judgment to Odbert would place him in a better situation than he would be in without it. I think the court erred in not setting off the bond of Fitch held by the said Conaway, against the demand of Odbert, unless the said bond was subject to counter setoffs, as appears [38] to be indicated, by tbe deposition of Jesse J. Fitch, and as to which fact there shonM have been inquiry. The court erred in decreeing the sale of the land of Con-away, when it does no-t appear that the rents and profits thereof will not satisfy the judgment in five years. If it was proper to> render a decree for any sum the amount of the decree’ is greater than it should be, by the amount of the costs on the forthcoming bond. I am of opinion that the decree complained of ought to be reversed, and the cause remanded for further proceedings to be had therein on tlie principles herein indicated. The remaining judges concurred, with Maxwell, J. Decree reversed.