Smith's Executors v. Anderson , 18 Md. 520 ( 1862 )

Bartol, J.,

delivered the opinion of this Court.

The result of a careful examination of the questions involved in this appeal, and of the authorities cited in the argument, is to satisfy this court of the correctness of the following propositions:

1st. That an original judgment is not merged, or destroyed by a judgment of supersedeas under our Acts of Assembly. There is no authority for the contrary proposition, and the doctrine of merger does not apply.

Merger occurs where one security is of a higher or more solemn nature than the other; but in the case of two judgments for the same debt, each being of equal solemnity, there is no merger. The plaintiff may pursue his remedy at his option, either on the original or supersedeas judgment. Suppose a judgment against A and B, and B dies after judgment, then A with C and D as his sureties, supersedes, qan it be maintained that the creditor may not revive the original judgment against the representatives of B, and have execution against the assets of B? The only restraint on the plaintiff is, that he shall recover no more than one satisfaction of the same debt.

2nd. If a judgment be rendered against A, B and O, A being principal, and B and C his sureties, and afterwards the judgment be superseded by A, B and C, the original defendants, with D and E as sureties, in such a case D and E are sureties for A, B and C, who, as to D and E, are all principals. The sureties of the original debtor are not co-sureties with the new parties on the supersedeas, in the sense in which the term co-surety is used in the law, with reference to the right of contribution. It is true, that in one sense all* are sureties for the principal debtor for the same debt; but as between themselves, the obligation of the latter is subsequent to, and secondary to, that of the former.

This proposition is very clearly expressed in the opinion delivered by Judge Earle, in the case of Hollingsworth vs. Floyd, 2 H. & G., 87, 91, and although not directly involved in the case, or strictly necessary for its decision, we are all of opinion that the law, as announced in the opinion of the learned judge, was sound, and supported both by reason and authority'. In Semmes vs. Naylor, 12 G. & J., 361, principles very analogous were announced, and are not inconsistent with the decisions in the cases of Creager vs. Brengle, Colegate vs. The Savings Bank, Norwood vs. Norwood, or the cases in 2 Vernon and 5 Dana, cited by the appellant in argument.

3rd. In this case, the conclusion, from what has been said, is, that the complainants* testator being one of the original sureties for William P. Anderson, the principal debtor, his representatives have no claim to subrogation as against Wright and Clary, the sureties on the supersedeas. They were not co-sureties with the complainants’ testator.

It has been very correctly said, that the rights to contribution, as between sureties, arise out of the principles of equity and justice which grow out of the relations of the parties to each other. It is clear, that Absalom- Anderson,-wlio was co-surety with John H. M. Smith, the complainants’ testator on the original debt, would be equitably entitled to equal contribution from John II. M. Smith for any money he (Anderson) might be legally bound to pay in satisfaction of the debt.

It is equally clear, that as between Absalom Anderson and the respondents, Wright and Clary, who were sureties for him, the latter would be entitled to claim full indemnity and satisfaction for any money paid by them. If, therefore, the complainants were to recover from Wright and Clary, they would be entitled to be repaid in full by Absalom Anderson, who, as to them, was principal, while Absalom Anderson would have a right, as before said, to recover, in his turn, contribution from the complainants’ testator, who, as to him, was co-surety and equally bound; it must follow, therefore, that the complainants can have no right to contribution from Wright and Clary.

4th. As to Absalom Anderson, who was co-surety with Smith, the complainants were entitled to recover contribution from him, which the Circuit court allowed them by the'decree, and in that respect the decree below was correct.

(Decided July 9th, 1862.)

We find no error in the proceedings of the Circuit court on the petition of Absalom Anderson, whereby he was allowed to bring into court the money, to which he acknowledged, the complainants to be entitled, and thereby became exempt from further interest and cost. The court’s order appears to have been passed in term time, and the complainants, therefore, are chargeable with notice of it. Such proceedings are consistent with justice, and sanctioned by the practice of courts of equity. See Daniell's Ch. Prac.,vol. 3,chap. 39; 1 Bland, 156 and 343. A decree- will be signed affirming the decree below, with costs to the appellee.

Decree affirmed.