BROWN v. LANG et al., 4 Ala. 50

COLLIER, C. J. The object of the plaintiff’s bill is not to obtain an assignment of the judgment recovered by the Bank against McRae and Mrs. Lang. If that judgment was distinct from the judgment rendered against the plaintiff, or was not satisfied by the payment of the latter, it would be entirely competent for Chancery to direct it to be transferred upon a bill exhibited with a view to such a result. [Creager v. Bengle, 4 H. and John. Rep. 234; Watts v. Kinney, 3 Leigh. Rep. 272.] But the assumed equity of the bill is, that the plaintiff, as the indorser of Mrs.

Lang, &c. has paid a note, which had been substituted for a note of her intestate, &c. on which he was also an indorser, and the makers of the note are unable to reimburse the amount paid.

It is not pretended that it is competent for an administrator to impose a direct liability upon the estate he represents, by executing a note or other security for money, in his representative character; but. it is insisted, that as by the substitution of the note which the plaintiff has paid, the estate of the intestate has been relieved from a liability tanto, in equity and natural justice, it is bound to refund him the amount advanced.

It is a settled principle, that a surety who pays a debt is entitled to stand in the place of the creditor as to all securities, funds, liens and equities which he may have against other persons or property on accouut of the debt. [1 Story’s Eq. 477 et post; Hampton v. Levy, 1 McC. Ch. Rep. 112; Worthington v. Ferguson,4 H. and John. Rep. 522; Tankersley v. Anderson, 4 Dess. Rep. 44; Miller v. Pendleton, 4 H. and Munf.

Rep. 436.] And it is equally clear, if a creditor cannot obtain satisfaction of a judgment by execution he may resort, to Chancery to subject a debt due to the defendant, or property to which he has an equitable title. In the case before us, the Bank was the creditor to whom the debt was due and has been paid. The intestate of Mrs. Lang, together with his copartner, were originally debtors, but that indebtedness was fully paid by the discount of the substituted note and an appropriation of its proceeds; and the evidence of it, in the language of the bill, was extinguished. This being the case, Mrs.

Lang and McRae became the debtors ; and it is a debt for the payment of which they alone were responsible, as makers of the note. There is nothing in the record from which it can be inferred that the Bank did not intend to discharge the intestate’s estate from all liability to pay the note of which he was a joint maker; and we cannot, against the direct allegation of the bill, suppose that there was a continuing responsibility.

The creditor then, could not have proceeded, either at law or in equity, to charge the estate of the intestate, in the hands of the administratrix; and the surety whose claim is deduced through the creditor, cannot look to any source of reimbursement of which the latter could not have availed himself. The Bank does not appear to have had any other security for the debt due -to it than the last note, which was indorsed and paid by the plaintiff;, and the principles we have stated do not, under this aspect of the case, authorize him to seek a repayment save only from the parties who preceded him on the paper.

If the judgment against the makers of the note was not discharged by the payment made by the plaintiff, then as we have already said, a transfer of that judgment might be enforced in equity. So the plaintiff might maintain an action at law, for money paid, &c. or if a reimbursement could not be obtained of either of the defendants at law, he might resort to equity., and there reach debts due to either of them, or subject other property to his indemnity. . It is certainly true, that by relieving the estate of her intestate from the payment of the note made by him and McRae,-Mrs.

Lang, upon proof of the insolvency of the latter, was authorized to charge the estate with the amount of the substituted note; and that sum would, be allowed her on the settle-' ment of her administration accounts. The plaintiff might, in equity,coerce a settlement of the intestate’s estate,cause its division and distribution, and obtain a decree for the appropriation' of the interest of both, or either, of the defendants to the extent of his advance.

If, upon the settlement, nothing should appear to be due to the administratrix, although she may have wasted the estate, the plaintiff would not be entitled to recover anything: the more especially as the sureties in her administration bond, who are entitled to equal favor, would be answerable for her default. This conclusion is also enforced by the consideration that the intestate’s estate was not the debtor of the plaintiff, but its administratrix was, and through her only as its creditor or distributee can it be resorted to.

From what we have said it is sufficiently shewn that the' plaintiff cannot proceed against the estate of the intestate upon the ground that the intestate was originally liable; but his only ground of equity against it, is through, either of the defendants as a creditor, or distributee. The bill was not framed with a view to such relief, but upon a hypothesis materially different, and, as we have seen, wholly untenable.

The subject matter of the bill not embracing what we have shown to be the equity of the plaintiff, the decree of dismissal will not bar a suit founded upon that equity, if it can be sustained by proof. [Story’s Eq. Plead. 60S.] Our conclusion is, that the decree must be affirmed.