faults occurring after his death (47). Whenever the undertaking of the surety is for a definite period, as when it is for an officer's conduct during his term of office, or for the repayment of advances made to the principal during a stated period, the estate of the surety is liable for any defaults occurring after his death; this is especially so when the surety binds his "heirs, executors, and administrators" for the performance of his undertaking.

§ 57. Same: Joint obligations. The old common law rule was that discharge of one joint obligor discharged all joint obligors; and, furthermore, if one of several joint obligors died, his obligation died with him and could not be enforced against his estate. Now, however, statutes usually provide that joint obligations shall be deemed joint and several, and under these statutes the estate of a deceased joint obligor is chargeable with the liability. It is the rule, however, in the absence of statute, that in case of purely joint obligations of sureties, if one of the joint obligors dies his personal representatives are discharged and the obligee can sue only the surviving obligors. Apart from statute, where the estate of the deceased joint obligor received some financial benefit from the obligation, courts of equity took jurisdiction and enforced the obligation against his representative (48). This was because the estate of the obligor had received something which it would be unjust to allow it to keep without paying value therefor. But the mere joint obligation of a deceased surety without benefit to his estate,

(47) Fewlass v. Keeshan, 88 Federal, 573. (48) Boskin v. Andrews, 87 New York, 337.

is not sufficient to create such an equity against his estate. His estate cannot be held liable in equity unless there is some moral obligation antecedent to the bond, and such a moral obligation cannot exist when the deceased was a mere surety and received no benefit (49).

(49) United States v. Price, 9 Howard, 90.

CHAPTER III.

REMEDIES OF SURETY.

SECTION 1. SUBROGATION.

§ 58. Subrogation of surety to creditor's rights. Subrogation is an equitable right which a party, who pays money at the request of or for the benefit of another, has to stand in the shoes of the creditor and enforce the latter's rights against the party benefited. Under certain circumstances, the surety, after he has paid the debt of the principal, may be subrogated to the creditor's rights against the principal debtor. He cannot enforce his right of subrogation before paying the debt, as this would tend to injure the creditor. He may be subrogated to all the creditor's securities, equities, liens, remedies, and priorities against the principal, and is entitled to enforce them against the principal in a court of equity. The right is one given by equity and is independent of any contract. The surety ordinarily can exercise it only after he has paid the entire debt. As we have seen in the preceding chapter, the creditor must take care not to injure the surety's rights by any affirmative act, and any act of his which injures them will release the surety from liability. Hence any release of securities or extension of time will either destroy or suspend the surety's right of subrogation, in part at least.

§ 59. Securities to which surety is entitled. In general the surety, in equity, is entitled to the benefit of securities which the creditor holds against the principal pertaining to the debt for which he is surety. The debt must be identical and the securities must be those pledged for the debt by the principal debtor, or for his benefit, or the surety is not entitled to be subrogated to them. Thus, when the surety is surety for a partnership and also for one of the individual partners, he cannot be subrogated to the securities given for a partnership debt by the firm, by reason of his having paid the debt of the individual partner for whose debt he is surety (1). On the other hand, the surety is entitled to subrogation to such securities as are given for the identical debt. Thus, a man gave a promissory note on which there was a surety. The note was given in payment of land bought by the maker. The creditor retained a lien on the land sold, as security for the amount still due him. The maker sold the land to a person who knew of these circumstances. The maker of the note became bankrupt, and the surety sought to enforce the creditor's lien against the land in the hands of the vendee of the maker of the note, he having paid the note. The court held he was entitled to enforce the lien against the land, for this lien was given the payee of the note as security, and the surety, having paid the note, is entitled to the benefit of this lien (2). As has been previously stated, the right of subrogation exists independently of contract; and therefore the surety may be sub

rogated to all securities, whether taken at the time the debt was created or subsequently thereto, and regardless of whether the surety, when he became bound, knew whether such securities had been given to the creditor. The right of subrogation arises as soon as the suretyship relation is created, though the right to enforce it does not arise till the surety pays the debt.

When a

§ 60. When surety can enforce securities. surety pays a suretyship debt a cause of action for reimbursement at once arises, and at this time his right of subrogation to the securities held by creditors also arises. As was stated above, the right to be subrogated if the surety pays the debt arises as soon as the contract of suretyship is entered into, but he has no enforceable cause of action until he actually does pay the debt. Thus, the plaintiff in a certain suit was surety on a promissory note secured by a chattel mortgage on some goods, and was forced to pay the note. He then brought a bill in equity claiming the right to enforce the chattel mortgage, and the court held he had the right to enforce the creditor's rights, and could enforce the mortgage or take possession of the mortgaged property in the same manner as the creditor could have done, if the note had not been paid (3). We have seen that if the creditor releases a security before the surety pays the debt, he thereby releases the surety to the extent of the value of such security (4). If the creditor releases a security after the surety has paid the debt, such release is not valid as to the

(3) Myers v. Yaple, 6 Michigan, 339. (4) § 31, above.