Coffee v. Tevis

Cope J. delivered the opinion of the Court Field C. J., concurring.

We think the judgment in this case was not authorized by the complaint. The suit was brought to enjoin the enforcement of a judgment recovered by defendant Tevis against the plaintiff and the defendant Greene. It is alleged that Greene paid to Tevis the amount of this judgment, and that he procured an assignment of it to the defendant Vassault, who is proceeding to enforce it against the plaintiff. The Cóurt below granted the relief asked. According to the complaint, Vassault was the mere agent of Greene, and we shall treat the case as though the assignment had been made directly to the latter. The question is whether the payment by Greene satisfied and discharged the judgment. Such, evidently, was not the intention with which the payment was made. What that intention was, is of course obvious, and we think effect must be given to it so far as it can be done without doing injustice to the [245]plaintiff. It would be unjust to allow the judgment to be enforced for a greater sum than that legally chargeable to him as his proportion of the debt; but to that extent no injustice can result from its. enforcement, and we see no reason why it may not be used by Greene for his protection and indemnity. The plaintiff and Greene were jointly liable upon the judgment, and of course, as between themselves, they were severally liable for their respective proportions of the amount necessary to discharge it. Greene paid the whole of this amount, and we think he is entitled to he subrogated to the rights of Tevis to the extent of the amount paid by him for the benefit of the plaintiff. We are not without authority in support of these views. In Scribner v. Hickok, (4 John. Ch. R. 532) it was held that a defendant who had paid more than his proportion of a decree was entitled to stand in the place of the plaintiff, and to use the.decree for his protection and indemnity, so far as it appeared that the other defendants ought to contribute. The same doctrine was laid down in Wheeler’s Estate (Md. Ch. D. 80). “ Where the judgment stands open,” said the Chancellor, “ I cannot see why a codebtor, paying more than his due proportion, may not avail himself of the judgment for his indemnity.”

The plaintiff attempted at the trial to show that the funds used in the payment of the judgment were the joint funds of himself and Greene, but as the complaint alleged that the payment was made by Greene, it was incompetent for the plaintiff to show anything to the contrary. The evidence upon this point was not only unauthorized by the pleadings, but so far as it tended to establish a joint payment by the plaintiff and Greene, was in direct conflict with the complaint.