Duke v. Pigman

Opinion ob the court by JUDGE BURN AM Abbieming. At the December term, 1889, of the Knott Circuit Count,. J. C. Jones reeoveered a judgment against J. N. Pigman [758] -and his securities upon his official bond as sheriff of Knott -county for the year 1888, for a claim which had been allowed to him, as jailer, against the county. P. M. Duke, the father of appellant, was -one of the securities. After the rendition of the judgment in favor of Jones, Duke, in •consideration of love and affection, conveyed to his son, •J. W. -Duke, the appellant in this proceeding, a house and lot in the town of Hindman. Subsequent to this conveyance, execution issued on the Jones judgment, directed to the sheriff, land was by him levied on the house and lot in question; and it was sold under that execution on the 18th of May, 1891, to one Combs, who subsequently transferred the benefit of his bid to the judgment creditor, •Jones, who, in December, 1891, transferred the bid to A. H. and W. G. Howard. After this transfer to Howard, appellant, J. W. Duke, instituted a suit seeking to set .aside the sale 'by the sheriff under the execution in favor ■of J ones. That ease came to this court and was decided March 10, 1898; and it was held that the conveyance by P. M. Duke to his son was void and inoperative as to the antecedent debts, and that the purchaser of the land at the execration sale for the satisfaction of the judgment on the bond was entitled to hold the property, as against the vendee of the security. See Wren v. Parish’s Assignee (Ky.) 39 S. W., 512 (19 Ky. L. R., 208). After that case was decided in this court, J. W. Duke instituted this proceeding in the Knott Circuit Court on the 2oth day of March, 1898, against 'the sheriff, Pigman, and the other securities upon his official bond, in which he seeks to recover judgment against Pig-man for the full amount for which the house and lot were ¡sold, and to recover of the.other appellees, as co-securities, contribution for the amount so paid by him. Appellees answered — First, denying the right of appellant to [759] maintain the action; and, second, they pleaded and relied upon the lapse of time and the statutes of limitation as-a bar to recovery; and a number of other defenses were also interposed by Pigman. The circuit judge sustained the plea of limitation and dismissed the bill, and the case is now here for review. After the sale of the house and lot, under the judgment by the sheriff, as the property of P. M. Duke,, he had the right, under section 4666 of the Kentucky .Statutes, to an assignment of the judgment, and such assignment would have given him the right to sue out an execution, or use the existing execution, or otherwise control the judgment to obtain satisfaction of Pigman for the whole amount so* paid by him, with interest, of from any co-security for his proper part of such payment; and if he had failed to-take an assignment of the judgment, under section 4665-of .the statutes, he could have recovered the amount so paid, with interest from the time of payment from Pigman, either by an action at law, or by information after ten days’ notice. He could also have sued his co-securities, and recovered their fair proportion of the debt so paid by him. While the conveyance from P. M. Duke to his son J. W. Duke was inoperative so far as antecedent debts, were concerned, it was not an absolutely void conveyance. On the contrary, it vested appellee with a good title as-against the grantor therein and all other persons except antecedent creditors; and he, by virtue of the conveyance,, was entitled to be subrogated to all the rights and remedies which accrued to his vendor by reason of the subjection of this property against Pigman, whose debt it was-sold to pay, and also the co-securities of his father upon* the official bond. The right of subrogation or of equitable assignment is not fouuded upon contract, nor [760] upon the absence of contract, but is founded upon the facts and circumstances of each particular case and upon the principles of natural justice; and, generally, where it is equitable that a person furnishing money or property to pay a debt should be substituted for the creditor or in the-place of the creditor, such person will be so substituted. See Crippen v. Chappel, 57 Am. Rep., 192; Hays v. Ward, 4 Johns. Ch., 130, (8 Am. Dec., 554). One of the most familiar instances of the application of the doctrine of subrogation is where the purchaseiof incumbered property, without assuming the incumbrances, pays it off in order to protect his own interest or to perfect his title. In such cases it is uniformly held that he is entitled to ibe subrogated to the position of the incumbrancer in respect to all the latter’s rights and remedies. See 24 Adol. & E., 253, and authorities there cited. After the seizure and sale of the property of appellant under execution, he was entitled in equity to have maintained an action for indemnity against the sheriff, and also for contribution against the co-securities of his father upon the officinal bond, by virtue of the sale and transfer to him by his father of the property so sold; but it appears that his house and lot were seized and sold on the 18th day of May, 1S91, and his cause of action accrued on that date, and the law entitled him'to an assignment of the judgment at that date on demand, but it does not per se make the assignment. In this case appellant did not procure an actual assignment of the judgment, but relies upon the implied promise to reimburse him for such appropriation of his property; but, as more than five years had elapsed after his cause of action accrued before the institution of the suit, his claim is barred by the lapse of time and the statute of limitations. See Joyce v. Joyce’s [761] Adm'r, 1 Bush, 474; Bowman v. Wright, 7 Bush., 375; Robinson v. Jennings, Id., 630. For reasons indicated, the judgment must be affirmed.