Substituted Liabilities; A Treatise on the Law of Subrogation, with Full References to the Civil Law
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1862 edition. Excerpt: ...was a mere equity, liable to be defeated by an assignment to a bonafide purchaser. 1 Neif v. Miller, 8 Barr, R. 347. his debtors for payment, so as to leave the estate of the other debtor for the payment of his separate and several debt, for, as between the two debtors, this might be inequitable; and the equity subsisting between them ought not to be sacrificed merely to promote the interest of the separate creditor. Nor will chancery, for the same reason, substitute the several to the place of the joint creditor, who has compelled payment from the estate of the debtor of the former. But where the joint debt ought to be paid by one of the debtors, a court of equity will so marshal the securities as to compel the joint creditors to have recourse to that debtor, so as to leave the estate of the others open to the claims of his individual creditors; or, if the joint creditor has already appropriated the latter fund, it will permit the several creditors to come in pro tanto, by way of subrogation, upon the fund which ought to have paid the joint debt." The principles, said the court, that have been brought to view, are of easy application in this instance. Here is a surety whose money has been applied in payment of the debt of his principal, to the exclusion of his own proper creditors. The court therefore held, that the judgment creditors of the surety had an equity to be subrogated to the creditor against the fund. The decision of the court in this case was rested upon the subtle distinction made in E2: parte Kendall, 17 Vesey, 520, under the doctrine of marshalling assets, &.c., which may always be defeated by a conveyance to subsequent purchasers, but it in fact came within the doctrine of subrogation strictly. If the surety had...
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- 13 Sep 2013
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