Simrall, J. :
In 1859 the executors of Jesse Hughes, deceased, sold the parcel of land described in the bill, on a credit, to E. F. Gore, for which Gore gave his two promissory notes, with Thomas B. Ford and William McCombs as sureties, maturing respectively 1st January, 1860 and 1861. Judgment has .been recovered on both notes.
. The complainant, W. C. Staples, was in 1861 sheriff of Choctaw county, and as such, received an execution issued on the first judgment, and as averred in the bill, by putting confidence in the principal debtor, Gore, he failed to make the money, and to return the execution according to law. The attorney for the creditor discovering his liability, was about to move against him and his sureties. In order to prevent the motion and to save his sureties from annoyance, and protect him and them from the statutory damages, he did, on the 25th March, 1861, pay to the judgment creditor or his attorney $871 81, the balance due on the judgment ; by reason whereof the complainant claims that he ought to be the equitable owner of the judgment, with its liens and securities, that he ought to have the benefit of the statutory mortgage, resulting from the sale of the decedent’s land, and inasmuch as the administrator, etc., with the will annexed, had obtained a decree of foreclosure, the money to arise from the sale should be appropriated to pay him the $871 81 and interest. On demurrer the bill was dismissed.
It will be perceived that these facts do not fall within the literal terms of art. 121, p. 123 of the Bevised Code, the article only covering the case of the. payment of a judgment recovered bn a motion for failure, to return the execution, in which event “ the original judgment and execution veste in the sheriff for his benefit, and execution shall issue [680] for his use, and at his costs.” The payment of the recovery on the motion is the fact which, by operation of law, fixes in the sheriff the right to the original judgment and a process thereon as usee.
The foundation of the sheriff’s equity, if he have any, is the principle of subrogation. Dixon, in his treatise on the subject, says, that it is the “substitution of another person in the place of the creditor in relation to the debt.” It differs from an assignment, in the circumstance that it does not necessarily depend on the act of the creditor, but may be, and perhaps generally is, independent of him. So it may be of the debtor. In many instances it takes effect by operation of law. Sometimes it is denominated a fictitious cession, made to one who has a right to offer, or make payment to the creditor. Thus, in Craft v. Moore, 9 Watt, 451, a surety who had paid the debt, and sought substitution to the rights of the creditor, -was treated as a fictitious assignee. In Letterdate v. Robinson, 12 Wheat. 594, it was declared to be a well-settled rule of equity, to compel a creditor, who had been paid by a surety, to assign the cause of action to him, and thereby invest him with an actual substitution; and, as stated by the court, it would be going but one step further to consider that as done which he has a right, to have done in his favor. Equity makes a full investiture of all the securities with which the creditor was provided, as where the principal had executed a mortgage to his creditor, who obtained a judgment at law, which the surety paid, such payment will not, in equity, have the effect of extinguishing the original debt, so as to preclude the surety from claiming the benefit of the mortgage by way of indemnity. Norton v. Soule, 2 Greenl. 341. The right to mortgage or other express securities rests upon no higher ground than a similar right to equitable liens, therefore there may be substitution to the vendor’s lien. Klisen v. Scott, 6 Dana, 137; Bank v. Chrisman, 3 B. Monr. 50. The general proposition is, that before the fight accrues there must be the discharge of legal obligation for another, [681] who is under a primary obligation, for no man can make another his debtor without his consent. The principle, in its application, is very broad, so that it were difficult to proscribe its limits. Generally, the person who discharges the debt by payment must be under a legal obligation to do so. This, however, is not comprehensive enough to include all the cases that have gone into judgment. If a subsequent incumbrancer or purchaser from the vendee discharges the vendor’s lien, either shall be substituted to all the privileges and priorities of the vendor. 2 Story’s Eq. Jur., § 1227. Strictly, it cannot be said that either is bound to pay off the lien, but they are in such relation that it may be necessary to do so in order to protect their security or title. Whenever, therefore, parties have such interests in property as make it incumbent on them to get in an outstanding claim in equity for its protection, good conscience would dictate that they should have all the rights which the holder of the equity had.
The averment of the bill is to the effect that the complainant was disappointed in the confidence he put in the word of the debtor Gore, which involved him and his sureties in responsibility for the judgment. It is fair to presume that Gore was aware of the risk incurred by the sheriff for a failure to return the execution. If that risk was induced to be assumed by his procurement and assurances, it would seem that there must be some consideration of policy, or rule of law in the way, to shield the debtor from the relief sought in this suit.
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Simrall, J. :
In 1859 the executors of Jesse Hughes, deceased, sold the parcel of land described in the bill, on a credit, to E. F. Gore, for which Gore gave his two promissory notes, with Thomas B. Ford and William McCombs as sureties, maturing respectively 1st January, 1860 and 1861. Judgment has .been recovered on both notes.
. The complainant, W. C. Staples, was in 1861 sheriff of Choctaw county, and as such, received an execution issued on the first judgment, and as averred in the bill, by putting confidence in the principal debtor, Gore, he failed to make the money, and to return the execution according to law. The attorney for the creditor discovering his liability, was about to move against him and his sureties. In order to prevent the motion and to save his sureties from annoyance, and protect him and them from the statutory damages, he did, on the 25th March, 1861, pay to the judgment creditor or his attorney $871 81, the balance due on the judgment ; by reason whereof the complainant claims that he ought to be the equitable owner of the judgment, with its liens and securities, that he ought to have the benefit of the statutory mortgage, resulting from the sale of the decedent’s land, and inasmuch as the administrator, etc., with the will annexed, had obtained a decree of foreclosure, the money to arise from the sale should be appropriated to pay him the $871 81 and interest. On demurrer the bill was dismissed.
It will be perceived that these facts do not fall within the literal terms of art. 121, p. 123 of the Bevised Code, the article only covering the case of the. payment of a judgment recovered bn a motion for failure, to return the execution, in which event “ the original judgment and execution veste in the sheriff for his benefit, and execution shall issue [680] for his use, and at his costs.” The payment of the recovery on the motion is the fact which, by operation of law, fixes in the sheriff the right to the original judgment and a process thereon as usee.
The foundation of the sheriff’s equity, if he have any, is the principle of subrogation. Dixon, in his treatise on the subject, says, that it is the “substitution of another person in the place of the creditor in relation to the debt.” It differs from an assignment, in the circumstance that it does not necessarily depend on the act of the creditor, but may be, and perhaps generally is, independent of him. So it may be of the debtor. In many instances it takes effect by operation of law. Sometimes it is denominated a fictitious cession, made to one who has a right to offer, or make payment to the creditor. Thus, in Craft v. Moore, 9 Watt, 451, a surety who had paid the debt, and sought substitution to the rights of the creditor, -was treated as a fictitious assignee. In Letterdate v. Robinson, 12 Wheat. 594, it was declared to be a well-settled rule of equity, to compel a creditor, who had been paid by a surety, to assign the cause of action to him, and thereby invest him with an actual substitution; and, as stated by the court, it would be going but one step further to consider that as done which he has a right, to have done in his favor. Equity makes a full investiture of all the securities with which the creditor was provided, as where the principal had executed a mortgage to his creditor, who obtained a judgment at law, which the surety paid, such payment will not, in equity, have the effect of extinguishing the original debt, so as to preclude the surety from claiming the benefit of the mortgage by way of indemnity. Norton v. Soule, 2 Greenl. 341. The right to mortgage or other express securities rests upon no higher ground than a similar right to equitable liens, therefore there may be substitution to the vendor’s lien. Klisen v. Scott, 6 Dana, 137; Bank v. Chrisman, 3 B. Monr. 50. The general proposition is, that before the fight accrues there must be the discharge of legal obligation for another, [681] who is under a primary obligation, for no man can make another his debtor without his consent. The principle, in its application, is very broad, so that it were difficult to proscribe its limits. Generally, the person who discharges the debt by payment must be under a legal obligation to do so. This, however, is not comprehensive enough to include all the cases that have gone into judgment. If a subsequent incumbrancer or purchaser from the vendee discharges the vendor’s lien, either shall be substituted to all the privileges and priorities of the vendor. 2 Story’s Eq. Jur., § 1227. Strictly, it cannot be said that either is bound to pay off the lien, but they are in such relation that it may be necessary to do so in order to protect their security or title. Whenever, therefore, parties have such interests in property as make it incumbent on them to get in an outstanding claim in equity for its protection, good conscience would dictate that they should have all the rights which the holder of the equity had.
The averment of the bill is to the effect that the complainant was disappointed in the confidence he put in the word of the debtor Gore, which involved him and his sureties in responsibility for the judgment. It is fair to presume that Gore was aware of the risk incurred by the sheriff for a failure to return the execution. If that risk was induced to be assumed by his procurement and assurances, it would seem that there must be some consideration of policy, or rule of law in the way, to shield the debtor from the relief sought in this suit.
The parties stand thus: the creditor has been satisfied his debt; the debtor has been exonerated without parting with any thing. It ivas at his instance that the indulgence was granted, and thereby the burden of the debt imposed on the sheriff. After placing the sheriff in that attitude, is it straining the truth too far to say that the money was paid at his request, and by one under a legal duty to the creditor? After the liability of the sheriff has been fixed, by the fact of his failure to return the writ, to require him to wait until [682] compelled by judicial means to pay, would encourage a repetition of a non-performance of duty. .We do not mean that the sheriff may voluntarily advance his money (when not liable for the judgment) and claim substitution. But if he fails to levy and make the money, on the inducement of the debtor, and to avoid legal proceedings threatened against .him and his sureties, pays the debt, then his equity is as .strong as if he had withheld the money until condemned by a judgment on a motion against him. Nor does this work the slightest injustice to the judgment debtor. The point under consideration has never, so far as we are aware, been decided in this state. In Morris v. Lake, 9 Smedes & Marsh. 521, the facts were that Humer, administrator of Estes, recovered a judgment against Morris and Lake, levy was made on Lake’s property, who superseded on the ground that the sheriff had either voluntarily, or at the instance of Munn,- paid the creditor. In Robbins v. Thompson, 13 Smedes & Marsh. 525, the parties are not given. In Harrison v. Harrison, 1 Litt. 145, it was held that the sheriff may show that the debt ought not to be collected. Say the court: “.It would seem against conscience to permit a plaintiff to recover from a sheriff the amount of his claim, where the sheriff had not received the money, but had barely become liable by some malfeasance in office, where, in equity and conscience, the plaintiff is not entitled to a cent from his principal.” In Dillon v. Cook, 5 Smedes & Marsh. 780, the sureties paid the money on motion against the sheriff themselves. . They .were not allowed to sue out execution for their use, because not embraced in the statute as it then stood. But, said the chief justice, “They are not without remedy. Besides their right of action, the administrator of thé sheriff (who had deceased) would be entitled to pursue the execution.” ' The statute, at that time, in words gave the sureties no right to the judgment and execution; it was confined to the sheriff. Yet, so impressive and urgent was the claim of the sureties, that it was announced that they might, through the administrator of the sheriff, pursue exe[683] cutiou for their re-imbursement; They would not do this in their own names, but they might through the right of the sheriff. What is the ‘ ‘ right of action ’ ’ meant by the court ? Certainly against the judgment debtor, whose debt has been satisfied with their money.
It is clear that the sheriff in this case has no right to pursue the execution ; that privilege is conferred in the single case of his paying the recovery on the motion. The principle was laid down in Miller v. Weedate, Noy. 107; Reed v. Preyon & Slatts, 7 Johns. 426; Sherman v. Boyce, 15 ib. 445, that, if the sheriff satisfy the debt out of his own money, he cannot afterward detain the goods on fieri facias for his own indemnity, but that the judgment is satisfied. When the money is advanced, at the instance of the debtor, the sheriff is turned over to his original action against him ; while in this case the sheriff cannot use execution on the judgment, because not within the terms of the statutory remedy, yet, in the circumstances, he should be allowed a redress. Having paid a debt, which was protected by a security, wholly separate from the judgment, paid because he had incurred a legal responsibility, his equity would be to have that security turned over to him for his indemnity.
Wherefore, we reverse the decree of the chancellor, and enter judgment here, overruling the demurrer, with leave to defendants to plead or answer within sixty days from this date.