Citation Numbers: 219 S.W. 727, 203 Mo. App. 148
Judges: ELLISON, P.J.
Filed Date: 1/26/1920
Status: Precedential
Modified Date: 1/12/2023
The principle governing subrogation is equity while that governing assignment is law. The office and definition of equity is the correction of that wherein the law by reason of its universality is deficient. "Assignment stands on contract," altogether different from equity. "The right of subrogation is an equity that arises out of a condition and does not depend on contract." [Lowenstien v. Insurance Co.,
But aside from the right of subrogation, we have but to return to the rule stated in the foregoing opinion which is closely related to subrogation, in principle, viz., that when one voluntarily surrenders a protection or security for his debt, he ought not to be allowed the unfairness of making it up from a surety who is only secondarily liable.
The motion should be overruled. *Page 153