Combs v. Candler

Buchanan, J., delivered the opinion of the court. The bill in this case was filed by the vendees of land for the purpose of being subrogated to the rights of creditors who had subjected those lands in their hands to satisfy a judgment against their vendor, and which was a lien- on the lands when they purchased them. They allege in the bill, among other things, that the lands have been sold, and that they themselves became the purchasers, paid the costs of the suit and sale in cash, and executed their bonds, with sureties, to the commissioner of the court for the deferred payments. It is also alleged in the bill, which ,was filed before the first purchase money bond became due, that the amount of the bonds is equal to the sum due from their vendor, that they were executed in liquidation of that indebtedness, and were accepted by the lien creditors in payment of their lien or decree. The record shows that the amount of the bonds is equal to the lien debt, but there is no proof that the lien creditors have accepted the bonds in satisfaetion of their debt. The doctrine is well settled that before a surety is entitled to be subrogated to the rights of the creditors against the principal debtor he must have actually paid or satisfied the debt, but it is not necessary that he should have paid it in money — but if [9] the creditor receives either property, negotiable paper, or other securities from him in full satisfaction of the demand, it is generally sufficient to entitle him to be subrogated to the rights of the creditors against the party for whom he has thus made payment. Brandt on Suretyship, &c., secs. 249, 250, 261; Sheldon on Subrogation, secs. 127 to 129; Gatewood v. Gatewood, 75 Va. 407; Tarr v. Ravenscroft, 12 Gratt. 642. The appellees by purchasing their own lands at the judicial sale, and executing their bonds to the commissioner of the court, did not pay nor satisfy the debt for which the land was sold, and having fail to prove, as they alleged in their bill, that the creditors had accepted those bonds in payment and satisfaction of the debt, they had no right of subrogation when their suit was brought. Bor this reason the decree complained of must be reversed, and the bill be dismissed, but without prejudice to the rights of the appellees. Reversed.