Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-24

ordinarily on default Of tho principal debtor
% pay IN equal pro portions. If surety take
security for the debt it ennres not only 10 his
protection but also to that of the creditor.
Phelps vs. Thompson, 2 John, oh. Il. 4l3; Mo-
ses VS.. Murgatroyd, i'd. 119; New London
bank VS.. Lee. IL tonn. liz; Hauer VS.. Savings
Fund, 2 i'd. 4s4; Eastman VS.. Foster, s Metcaif,
353. And also to that of his co-securitie.: Hum
dale vs. Murray, YER, 1876; Brown VS.. Ray, 10
n. q. 7O2; Elwood vs. Defender, Barb. s. c..
X. 399; Gregory VS.. Murray, 2 Iredells, Equity
232; in Sidderdale VS.. Robinson, 2 Brock l57.
Chief Justice Marshall stated rule: This
principle of substitution is completely estab-
llshed in the books, and being established it
must apply to all persons who are parties to
the security, SO far as equitable" And that it
applies in favor of one surety who has paid
more than his proportion of the debt to en-
force contribution out of security given by a
Go-securlty, is fully affirmed in Cuyler vs..
Ellsworth e. page 80; Cheesebrugh VS.. Millara l,
Sonn en-. Il. AUS; Scribner vs.. Hickok 4. id. So;
Groof vs.. Moore 9, Watts 451; Hess's Estate So,
n renn. 81, 2i2; Burrows VS.. Administer Of
Garnes !, Des. 40; Lidderdale vs.. Robinson 2,
Brock, l57; II, Wheaton 594; and is to be re.
sarded as settled doctrine. y
As we nave stated, where Joint debtor who is
surety, pays the debt, the equitable title to
the debt and securities rests in him through
tne doctrine OF SEGREGATION, and this equitable
title gives life and vitality to an assignment mr.
=
doctrine OF equity preserve the debt and secur
ltles from ex motion. and rest the equitable
Title IN the surety, 1t Is competent for the par
ties to change the equitable into legal title.
On no other principle can debt be transferred
by the creditor to one of the joint debtors. The
assignment of the debts and mortgages in this
case depends for its validity upon Bissel's right
OF subrogation upon paying the amount to
Latte. AS to the first of the notes and the
mortgages, SO far as they secured that note, the
right was perfect, for the debt was due, and
the principal debtor was in default, and upon
paying 1t, an assignment of it by Latte to Bis
sci would be at once operative. It was not so
With the second note. That debt was not due
The principle of subrogation is that one
VINO has been compelled to pay a
DEBT which ought to have been
PAID by another is entitled to a cession of all
the remedies which the creditor possessed
against that other. Mccormick vs. Irwin. IL
Casey III. merely voluntary payment does
not entltle one to subrogatiun; but one who
pays when legally liable is not /. volunteer. In
This case at the time of the assignment, and
also at the time Of the foreclosure, the second
debr was not due. AS to it the principal
debtor had made no default and Bissel was
not under any legal liability to pay it then. q
payne at that time did not at once entitle
him to subrogation against his co-debtor. as to
whom the debt was not then payable, SO that
as to the second note there was at the date
OF the assignment and OF the fore
closure no perfect right Of subrogation
or equitable title to make the assignment op-
erative to pass the legal title to Bissel against
plaintiff the title could vest in him only for
the purpose of compelling contribution and
only when he entitled to contribution
Rut he could not be entitled to contribution
at the date of the foreclosure, for the debt was
uot due. Upon this ground that at the date
OF the foreclosure the legal title to the second
note, the only debt remaining after the sale OF
Stlenhauer's land, was not in Bissell ana con.
sequently the legal title of the mortgage of the
plaintiff was not in him, the fore
closure against plaintiff was void. In analogy
| to tho cases in which equity. where surety
pays the debt treats the creditor or party hold
ing the security trustee of the leg al title fol
the surety paying and such title az still sub
sihtlng for that purpose. We think the pay
ment OF the amount of the second note by Bis
sell to Latto did not extinguish the note, and a.
the assignment coulu nut then operate To pass
tbs legal title to the note as trustee fol
blssel until his right of snbrogation arose ano
became perfect by the debt falling due anG
the default of the principal, and that as soo1
as such right of subrogation arose, the assign
| menu became operative to pass the legal title
From these views, it follows that the cour,
below was right in adjudging the foreclosure o.
the mortgage executed by plaintiff and tn.
| certificate of sale executed thereon to be void
but in error in adjudging the second note ant
the mortgage executed by plaintiff paid, ant
| cancelling and descharging the same, and alss
IN adjudging the assignment from Latte t,
Bissel to be void and in such particulars tn,
judgment must be reversed. Also, as til.
respondents, in their brief offer to release tn,
defendant Seagrave Smith from the judgment
! for COSTS to avoid any misunderstanding as t
the judgment being double as it appears to he
| the Judgment, SO far it adjudges costs against
| MIN, Will be reversed. GILFLLAN, G. j.