Vanderveer v. Ware , 65 Ala. 606 ( 1880 )

SOMERYILLE, J.

— Section 3418 of the Code (1876) authorizes a surety to pay a judgment obtained by any creditor against himself and his principal, and to have the judgment assigned to himself. He is thus empowered to “ assert, in law or equity, any lien or right against the principal debtor, which the plaintiff could assert, if the debt had not been paid.”

The assignment of the judgment' rendered on the supersedeas bond, which was taken by the appellant, conferred on him any lien or right which the trustees of Howard College could have enforced, as the plaintiffs in such judgment, against the “ principal debtor,” Robert Y. Ware, who was the executor of the last will and testament of Robert J. Ware, deceased. The statute can not be extended by construction, further than authorized by its express words; for, being in derogation of the principles of the common law, it must be strictly construed, as to the rights created by it.

It is settled by the current of authorities in this State, that executors and administrators, even when contracting for matters necessary to the execution of their trusts, do not bind the estate they represent, but are individually liable on such contracts. Suits against them must be personal, and the judgment is de bonis propriis, and not de bonis testatoris. — 1 Brick. Dig. p. 957, § 614.

It may be, however, that, in a proceeding of this character, a court of equity would undertake to reach any personal assets which might remain unadministered in the hands of a personal representative, and subject them to liability for the claim assigned to the surety; and as the executor is individually liable on the supersedeas bond, his own distributive share in the estate of the testator can certainly be reached, whether it be realty or personalty.

But the case stands differently with the other devisees of the testator. Unlike Robert Y. Ware, they are not privy to the contract which created the suretyship. The plaintiff in the judgment had no right or equity against them, which was assignable to the surety who was a defendant in the judgment. Section 3418 of the Code only authorizes the assignment to such extent as to keep the judgment in force against the “ principal debtor,” Robert Y. Ware. The rights of the other devisees must be tested by the common law, without reference to this statute. When a surety paid a judgment against himself and his principal, and took an assignment of it to himself, the judgment, before the enactment of the statute, was at law extinguished (Prestar v. Stallworth, 37 Ala. 402); and he became a simple-contract creditor, having no standing as a judgment creditor in a court of equity.

.The averments of this bill, which were admitted by the demurrer to be true, show that appellant, Yanderveer, paid the judgment against himself and Robert Y. Ware, on February 13th, 1873. The bill was not filed until March 2d, 1880, or more than six years from the date of the payment. Where a surety pays a debt, and takes no step to enforce his claim against the principal, or to place himself in a condition whereby he may be subrogated to the creditor’s rights, but delays until he is barred by the statute of limitations, he is without remedy in a court of equity. — Brandt on Surety-ship, § 267. Such is the case here, so far as concerns all the devisees under the will, except Robert Y. Wai’e. The remedy of the appellant against the lands devised to them is barred, and the demurrer as to them was properly sustained.

The bill should, however, have been retained, so far as to preserve the enforcement of complainant’s equities against Robert Y. Ware. The chancellor erred in not pursuing this course, and for this reason the decree is reversed, and the cause remanded. The costs incurred by this appeal, and in the lower court, will be taxed against the appellee, Robert Y. Ware.

Stone, J., not sitting.