Cottrell's Appeal—Bowers' Estate

23 Pa. 294

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1854
• Status: Published

Opinion

The opinion of the Court was delivered by

Woodward, J.

Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor. Actual payment discharges a judgment or other encumbrance at law, but where justice requires it we keep it afoot in equity for the safety of the paying surety. These principles, settled in numerous cases, which will be found collected in 2 Wharton’s Digest 612, are decisive against this appellant.

There is nothing in the argument that Hershey’s judgment had been extinguished. It was paid to be sure, and this was necessary to entitle the surety to subrogation, for substitution of a surety is never allowed where anything remains due to the principal; Keyner v. Keyner, 6 Watts 221; Bank of Pennsylvania v. Potius, 10 Watts 148; but it was not satisfied on record, and was finally assigned voluntarily by Hershey to Pusey, who acquired, thus, a legal title as well as an equitable right to it as a means of indemnity.

We are of opinion the Court were right in confirming the distribution made by the auditor, and the decree is accordingly affirmed.

Lewis, J., dissented.