ARK.] JANSEN '2). PERRIN. 927
JANSEN v. PERRIN. Opinion delivered July 1, 1929. 1. s UBROGATION—VENDBE PAYING JUDGMENT AGAINST VENDOR.—A purchaser of land without notice of the lien of a judgment against his vendor and another person, on paying such judgment was subrogated to the judgment creditor's rights against the third person, though, as between the latter and the vendor,'the vendor was primarily liable on the note on which the judgment was obtained. 2. SUBROGATION—NECESSITY OF PAYMENT IN ADVANCE.—Where a judgment was recovered on a note against two parties, one of whom was the prior indorser and primarily liable, the other had no right of recourse against the debtor primarilY liable . until he paid the judgment. Appeal from Randolph Circuit Court; John C. Ashley, Judge ; affirmed. John L. Bledsoe, for appellant. George M. Booth and Walter L. Pope, for appellee. HUMPHREYS, J. Appellee herein brought suit against appellant herein and W. A. Jackson, in the court of J. A. Douglass, a justice of the peace in Randolph County, upon an account in the sum of $160 and interest at the rate of 6 per cent. per annum from March 3, -1928, being the amount paid by him on said date to the Pocahontas State BAnk in satisfaction of a judgment it obtained against W. A. Jackson and the appellant herein on the first day of August, 1925, in the circuit court of Randolph County, which was a lien upon block No. 10, Dalton's Addition ft) the town of n y cahontas, in said county and State, containing two acres, which he acquired by purchase from W. A. Jackson on August 15, 1925. On November 1, 1928, the cause was tried by the justice of the peace, sitting as a jury, resulting in the rendition of a judgment against both the appellant herein and W. A. Jackson. Appellant herein appealed from the judgment to the circuit court of said county, but W. A. Jackson did not appeal. After the transcript was lodged in the office of the circuit clerk, appellant herein filed an answer to appellee's statement of account, interposing
928 JANSEN v. PERRIN. [179 the defense thereto that W. A. Jackson was a prior in-dorser on the. note upon which : said judgment was obtained, an.d that, as between W. A. Jackson and himself, W. A. Jackson . Was priniarily liable thereon, and that,' tinder the doctrine of . suhrogation and aS a matter of equity, he had the right to require the Pocahontas . State Bank to collect r the,judgment it obtained against them out of..W. A. -Jackson or the real estate of W. A. Jackson, upon whith the judgment was a lien. - The cause was submitted, • on appeal in the circuit court, Upon the PleadingS and testimony Adduced by the respective parties; which resulted in a judgment upon the account against appellant herein, in favor of appel-lee herein, from which is this appeal. . The record'reflects, according to the undisputed facts, that on August 1, 1925, the Pocahontas State Bank obtained a joint and several judgment against W. A. Jack-son . and APpellant- herein for . $151.94,--With interest and cOsts, WhiCh becaine . a lien from the date of its rendition uPon- the'following described - real estate owned at the tirde'bY W. A. •: Jackson, tO-wit, said block 10 in Dalton's Addition tO the 'City of POcahOntas ;' that the .judgment did not-show on its face or indicate in the -findings of the c6urt any difference in the liability of Jackson from the liability of appellant herein; that on August 15, 1925, W. A: Jackson -sold said real estate to a.ppellee herein upon the . representation that there were no judgment liens against it; that the consideration paid and to"be paid for; the- prOperty was $3,500, of whidh sum $500 Was-paid.in dash, the sum of $780 -by the assumption of two mortgages against the property, and the balance- of the consideration was represented by vendor's lien notes in the suria of $2,120; that Jackson traded $1,500' of the notes to his brother-in-law, Mr. Presley, and the other $500 note to the Pocahontas' State Bank ; that, when the vendor's lien notes for $1,500 matured, it became necessary for appel-lee to borrow money on the property with which to pay him; and that, in negotiating a loan for that amount from a building and loan association, it- was discovered that
ARK.] JANSEN v. PERRIN 929 the Bank of Pocahontas had obtained the judgment against W. A. Jackson and the appellant herein on the first day of August, 1925, which judgment was a charge and lien against said property; that appellee herein notified the appellant herein of the situation, and requested him to pay the judgment ; that appellant herein declined to pay -the judgment, stating that W. A. Jackson was primarily responsible therefor as between W. A. Jackson and himself ; that the fact is that W. A. Jackson was a prior indorser to appellant herein on the note upon which the Pocahontas State Bank obtained judgment against them; that, in order to borrow money upon said property to pay Presley, appellee, on March 3, 1928, Paid the judgment, amounting then to $160, including interest, to said bank, and obtained a satisfaction thereof ; that, in-order to clear the property from the vendor's lien notes against it owned and held by Presley so that he could get a loan from the building and loan association, he obtained a release deed from W. A. Jackson on the 5th day of April, 1928. Under the undisputed facts stated above, appellee herein had a right to pay off the judgment lien in favor of the Pocta.hontas State Bank against W. A. Jackson and the appellant herein to clear his title to the property purchased under a warranty deed from W. A. Jackson. The rule of law applicable to the facts in this case is correctly announced in 37 Cyc. at page 448, as follows : "A purchaser -who takes land without knowledge of a judgment, which is a lien on it, is, as respects the land, a surety of the payment of the judgment to the extent of the value of the land, and, upon payment, is entitled to be subrogated to the rights of the judgment creditor; and he may be subrogated to the judgment creditor's lien against other property of the judgment debtor, and if, to save his land from sale, he has paid several judgment liens, he is entitled to be subrogated to the liens of such creditors against any other land of his vendor." The rule, stated in slightly different language in Har-ris on the Law of Subrogation, § 643, is as follows :
930 [179 "It•is . a familiar_ doctrine that thevurchaser -of. in-, cumbered..real: property may pay off the lien to protect his own title,. and be . subrogated to the •rights of f the .creditor."! , : , :The . alleged defense. and. proof in support . thereof -by-appellant herein' to the . suit of appellee herein, to the effect,that, because -W., A. Jaickson: Was* .a prior indorser .to hifirself on' the note. upon which . said -judgment was !obtained,- he •( appellant herein),: had, a 'right ,to.;require :the -Pocahontas State, Bank to collect the : judgment -from Jacksori,..constituted . no• defense at alL .The:Poca-liontas StateBank obtained a several and joint:judgment against: both appellant herein :and W. A. Jackson i : and ,had. • the right to .c,ollect- said 'judgment , out , of , either „or hoth of. theth without •tegard to the 'wishes _or demand .of either: . If "appellant hereh had- paid the judgment -to the Pocahontas State Bank'he wouldlhen have had recourse against W. A. Jackson, Who was . primarily responsible on the note. Unless he;had, and until he has ,paid;thejudg-ment, he would not have any recourse againsVW., A., J:ack-som„ , Bartov, Matthews,141, Ark.: 262, 216 S. Ay; 693, .9.,A. . Appellee herein,, having paid the judgment to, -elear his,titl to„the land, ,was subrogated to, the rights:of the Pocahontas State -Bank, and was entitle&to collect the judgment -from ' appellant -herein. Tbe judg7 11-lent-against him- is thereforeaffirmed.,!, ! • o'' 7 5: - .No objtjonto the jurisdiction of. the- court. seerns to have been raised in this case. , The objectio,n ihat , the cause -should h've been hrodkht in equity was 'therefore Waived; and th'e Cause was- ProVerlY tried-aecording to 'the equity . principles inVolVed:' 04-gan v.;1116wilphis &• L. I l i...Rd. Co., 51 .235.---(leporter).' . . . , . • '
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.