North v. Albee , 155 Fla. 515 ( 1945 )

In June, 1935, M.A. Smith as liquidator, secured a judgment in a common law action against John Ringling, F.H. Albee, A.E. Cummer, and others. The judgment was paid in the main by John Ringling in December, 1935, and Ringling died in December, 1936. In February, 1943, more than seven years later, appellants who are executors of the estate of John Ringling, filed suit in equity seeking to be subrogated to the right of Albee in certain dividends described later in this opinion. A motion to dismiss the bill of complaint as amended was granted, and this appeal was prosecuted.

The basis of the common law suit was that Ringling and the other defendants owned 592 shares of stock in the Bank of Sarasota which was placed in the hands of M.A. Smith for liquidation and the judgment was for the double assessment on the stock to pay the obligations of the bank. At the time the bank closed, Ringling and Albee had large amounts on deposit. From time to time, the liquidator returned to the depositors certain percentages of what they had on deposit when the bank failed, but refused to pay to Ringling and Albee any percentages, retaining theirs for the purpose of applying them on the judgment when the aggregate became sufficient for that purpose. It appears that in December, 1935, the dividends in favor of Ringling, Cummer, and Albee were sufficient to pay the judgment and the liquidator used the aggregate sums for that purpose. The amount of the judgment was $77,712.95 of which $44,455.02 was paid from the funds of Ringling, $23,467.92 from the funds of Cummer, and $3,790.01 from the funds of Albee.

Appellants contend that the pro-rate part of the judgment of each of the parties was $23,904.31, but that there was paid from the funds of Ringling in excess of his pro rata share the sum of $20,550.70, of which $20,114.30 was used in making up the sum of Albee due on the judgment and $436.39 was used in making up the part of Cummer due on the judgment. All of these payments were made with judicial sanction and without Ringling's consent.

The first question presented may be stated as follows: Where a joint judgment is secured against several codebtors and paid by one of them in December, 1935, can the debtor paying the judgment or his executors more than seven years later maintain a suit in equity against another codebtor by way of subrogation to recoup himself for the sum paid?

There being no dispute about the facts, it is quite evident that Ringling or his executors could have secured a common judgment against Albee or any of the joint debtors for whom he paid if action for that purpose had been started before the statute of limitations ran against it, so the answer to the questions turns on whether or not having let the bar of the statute run against them in law, they can thereafter assert their right to subrogation in equity.

Appellants contend that this question should be answered in the affirmative on the theory that while all the judgment debtors are liable severally to the owner of the judgment but as between themselves, the rule is different, that each joint debtor is regarded as the principal debtor for that part of the debt which he ought to pay and only secondarily liable for the share of other debtors.

It is clear that Ringling was one of the joint debtors, that he paid the major portion of the joint debt in December, 1935, and died in December, 1936. He had more than a year and his executors had had more than two years within which to assert his claim for contribution against the codebtor in law but failed to do so. They were therefore barred by the statute of limitations to bring an action at law to recover the sum paid for them.

The rule most generally approved in this country seems to be that a person by payment of the debt of another does not ipso facto become subrogated to the rights of the creditor; he only acquires a right to subrogation which must be actively asserted before subrogation can actually take place. In other words, a surety must take steps to enforce his right of subrogation within the period prescribed as a limitation to the enforcement of simple contracts, for this being merely an equitable right will not be enforced at the expense of a legal one. 27 Am. Eng. Ency. of Law 2d 272; Junker v. Rush,136 Ill. 179, 26 N.E. 499.

In Boley v. Daniel, 72 Fla. 121, 72 So. 644, and similar cases, this Court approved the rule that equity will not apply the principle of subrogation where to do so would deprive one of a legal remedy. In American Surety Company of New York v. Murphy, 152 Fla. 862, 13 So. 2d 442, we also held the general rule to be that where a party has a complete and adequate remedy at law and fails from any cause to rely on it, he will not be permitted to assert it in equity in the absence of a showing of fraud, accident or mistake or circumstances beyond his control.

For these reasons I find myself unable to agree with the opinion of Mr. Chief Justice CHAPMAN. I therefore dissent and am authorized to say that Mr. Justice BUFORD joins me in dissent.

BUFORD, J., concurs.