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Subrogation an Equitable Right


SUBROGATION AN EQUITABLE RIGHT. "The right of the surety to demand of the creditor whose debt he has paid, the securities he holds against the principal debtor, and to stand in his shoes, does not depend at all upon any request or contract on the part of the debtor with the surety, but grows rather out of the relations exist ing between the surety and the creditor, and is founded not upon any contract, express or implied, but springs from the most obvious principles of nat ural justice." Subrogation, by which is meant the right of the surety or guarantor upon payment of the debt of the principal to the creditor, to be substituted for, or placed in the position of the creditor as regards all securities, liens, or other advantages which the creditor is holding against the principal, is strictly an equitable doctrine, and must be enforced in a court of equity. (Smith v. Harrison, 33 Ala., 706.) While a mere stranger or volunteer cannot by the payment of the debt of another be entitled to sub rogation, the surety or guarantor of a debt is entitled to subrogation upon payment of the debt without any stipulation for it. (Burton v. Mill, 78 Va., 468; Miller v. Stout, 5 Del. Ch., 259.) The payment by the surety discharges the debt as to the creditor but it remains in force as to such surety against the debtor, and equity by the doctrine of subrogation, aims to compel the party in duty bound to pay the debt to do so, hence it transfers to the surety pay ing, the original evidences of the debt, any judg ment in which the debt has been merged, all collateral securities or liens held by the creditor, and a right to compel their assignment to him from the creditor. (Dunphy v. Gorman, 29 III. App., 132; McCormick's Admrs. v. Irwin, 35 Pa. St., III.)

debt, creditor and surety