
    *Douglass v. Fagg.
    July, 1837,
    Lewisburg.
    (Absent Cabell. J.)
    Sale of Realty — Vendor’s Lien — Subrogation to — Case at Bar. — M. .sells land to l'\ who gives two bonds for the purchase money. D. for whose benefit the purchase is made, pays oif the first bond and part of the second. The balance he delivers to If. to be paid to M.but it is not paid over, and suit is brought for the same on the second bond against if. J udgment being rendered, F. gives a forthcoming bond with security, which is forfeited, and afterwards obtains an ininnction, upon giving bond with surety to pay the amount of the judgment in case the injunction shall he dissolved. The injunction is afterwards dissolved, and judgment rendered against the surety in the injunction bond, which he satisfies. Then the surety claims that for this money paid by him in satisfaction of the vendor’s claim, the vendor had a lien upon the land, and files a bill to be substituted in the place of the vendor, and have the benefit of the lien. Held, the claim to substitution cannot be sustained, and the bill must therefore be dismissed.
    Appeal from a decree of the circuit court of Augusta, pronounced on the 21st of June 1834, in a suit wherein John Fagg was plaintiff, and James Douglass and others were defendants. The record disclosed in substance the following case.
    Robert Draffin, the owner of certain land on Ivy creek in the county of Albemarle, conveyed it in the year 1805, in trust to secure the payment of certain debts, amongst which was a debt to William Brown & Co. The land was sold by the trustee, purchased for the firm of Brown & Co. and conveyed to Brown. Draffin however retained possession, and contested the sale. In this state of the matter, Brown having died, an arrangement was made in the year 1815 between Boyd Miller the surviving partner of Brown & Co. of the one part, and James Douglass and Crenshaw Fret-well of the other part, of the following nature. Douglass and Fretwell became the ostensible ^purchasers of the land at the price of 2550 dollars, to be paid in two instalments, the one of 1200 dollars payable in 1816, the other of 1350 dollars payable in 1817. They were to indemnify Miller against certain responsibilities which his firm had incurred for Draffin ; to execute their bonds for the two instalments of the purchase money; and to receive a con vej’ance or release of the title to the land. This arrangement was made for the benefit of Draffin, who was to pay the purchase money, and protect Douglass and Fretwell from loss on account of their engagements. They executed their bonds pursuant to the arrangement, and Miller executed to them a deed of releáse for the land; but his deed was not delivered. No written evidence was preserved of Draf-fin’s interest in the contract, but he was left in possession of the land.
    Draffin paid the bond of 1200 dollars in 1816, and afterwards paid 800 dollars, part of the bond for 1350 dollars. Then he went to Kentucky, leaving James Douglass in possession of part of the land, and his son Thomas Draffin in possession of the residue, with funds at command sufficient to. pay the balance of the purchase money. Thomas Draffin, in his father’s absence, put into the hands of Fretwell the balance due upon the last bond, but Fretwell failed to pay over this balance to Miller. Suit was brought at law against Fretwell and Douglass, and judgment recovered against them. An execution issued on this judgment, and a forthcoming bond was executed by Fretwell, with Thomas Draffin as his surety, upon which bond execution was af-terwards awarded. An appeal was taken, from the judgment on the forthcoming bond, and that judgment affirmed.
    On the 17th of November 1820, while Robert Draffin was in Kentucky, Fretwell filed his bill in the court of chancery at Sta,unton, making Boyd Miller the sole defendant thereto. In this bill Fretwell claimed to be the sole purchaser of the land, alleging that he had paid *the first bond and 800 dollars of the second; that he had sold one half of the land to Douglass;, that he had made a compromise with Robert Draffin, and had received no title, it being in the heirs of Brown, and Miller being consequently unable to make it. An injunction was prayed for to the judgment, which was granted, and John Fagg became Fretwell’s surety in the injunction bond.
    Sometime afterwards, in November 1823, Douglass having discovered what measures Fretwell was pursuing, filed his bill also in the court of chancery at Staunton, disclosing the character of the purchase by himself and Fretwell, the interest of Draffin, and the obligation of Fretwell to pay the balance of the money, without any right to the land; concluding his bill with a prayer that Fretwell should be restrained from getting the title, and that his injunction should be dissolved.
    While these suits were pending, Robert Draffin returned from Kentucky, and in May 1825 filed his bill in the Staunton chancer3r court, making Brown’s heirs, Boyd Miller, Fretwell and Douglass defendants, setting forth the whole case, and praying that Fretwell’s injunction might be dissolved, that he might be compelled to pay the balance of the purchase money, and that the title to the land might be conveyed to him the complainant. Fretwell answered this bill, as he had previously answered that of Douglass, insisting that he had an interest in the purchase of the land; that 200 acres thereof were to be secured to him; that he had paid a small part of the first bond; that he, and not Draffin, had paid 800 dollars of the second bond; and that Thomas Draffin had never put into his hands any money to pay the balance of the second bond; though he admitted that he had become indebted to Thomas Draffin about the amount of that balance, and executed his note therefor. Douglass answered, admitting the statement in Draffin’s bill to be true, but alleging that before TDraffin went to Kentucky, respondent had advanced to him 2000 dollars, on his promise to secure it upon the land in question ; that he had made him further advances, and after his return, had settled with him, ascertaining the whole amount of the advances to be 5280 dollars, for which he had agreed to purchase of Draffin 440 acres qf the land, the whole tract being between 600 and 700 acres. He exhibited Draffin’s receipt, bearing date the 21st of August 1826, and acknowledging the purchase. Among the proofs in this cause was the deposition of Thomas Draffin, declaring that the whole of the first bond, and 800 dollars of the second, had been paid by Robert Draffin, and that he the deponent had paid into the hands of Fretwell the balance of the purchase money, upon his promise to pay it over to Boyd Miller.
    Draffin’s bill was brought to a hearing the 13th of December 1827. Whereupon the court pronounced as its opinion, ‘ ‘that the defendants Douglass and Fretwell have no claim whatever to the lands mentioned in the bill, arising under their contract of purchase, they„ having interested themselves in the purchase for the benefit of the plaintiff, and having agreed to release, in case the plaintiff should thereafter pay the purchase money which they had undertaken to pay.” The court was “further of opinion, from the evidence in this cause, that the plaintiff faithfully complied with his contract, by discharging to the agent of Miller all the money which Douglass and Fretwell had undertaken to pay for him to Miller, except the sum of ^166. 3. 1. with interest thereon from the 2d of July 1817 till paid, and that this balance, though not paid over to the defendant Miller, as it ought to have been, by the defendant Fret-well, has been paid by the plaintiff to the defendant Fretwell. ’’ After further stating its opinion as to the right of Douglass to the 440 acres of land, and the lien of Miller upon all the lands for the balance of *the purchase money, the court adjudged, ordered and decreed that George Eskridge, the marshal of the court, be appointed a commissioner to convey to the plaintiff the title of Brown’s heirs, and also to execute a release to the plaintiff of all the interest of Boyd Miller in the lands, “so soon as it is ascertained that the defendant Miller has obtained payment of the said sum of £166. 3. 1. with interest from the 2d of July 1817 till paid, from the defendant Fretwell or his securities, or from any other person.” Draffin, after thus obtaining the legal title, was decreed to convey to Douglass the 440 acres. And the defendants were directed to pay to the plaintiff his costs.
    The suit of Douglass against Fretwell was brought to a hearing, and the bill dismissed, the 5th of December 1827.
    And in the case of Fretwell against Miller, the injunction was dissolved the 27th of June 1827, and the bill dismissed, under the act of assembly, at the following term.
    These causes being disposed of, a suit was. brought upon the injunction bond by Boyd Miller, against Fretwell as the principal obligor, and Fagg as the surety therein.
    While the suit on the injunction bond was' pending, Fagg, in August 1828, exhibited his bill in the Staunton chancery court against James Douglass, Robert Draffin, Thomas Draffin and the marshal of the court, claiming the benefit of Boyd Miller’s lien on the land for the payment of the balance of the purchase money; insisting that as he was no party'to the suits, he was not bound by the decrees rendered in them; and charging that Draffin had procured the decree fraudulently, by the perjured evidence of Thomas Draffin, who was interested in the land, holding part of it under his father; that this interest was concealed during the pendency of the suit; that Fretwell had in fact paid part *of the purchase money of the land, and never received the balance from Thomas Draffin, but that Fretwell being poor, feeble and unlearned, there was a want of attention to the good conduct of the suits. Douglass answered, controverting the plaintiff’s allegations, and insisting that the decrees already rendered were obligatory upon Fagg, and conclusive. Robert Draffin died before answer. John Draffin his executor answered the bill, also controverting the plaintiff’s allegations, and insisting upon the decrees. Thomas Draffin likewise answered, denying the plaintiff’s allegations ; denying that he was interested when he gave his evidence; and re-affirming the facts which he had stated in his deposition. The marshal of the court did not answer.
    William Harper, on his motion, was admitted a defendant, and claimed 200 acres of land, the residue of the tract after satisfying the claim of Douglass for 440 acres. In September 1827, after the dissolution of Fretwell’s injunction, Harper, with knowledge of that dissolution, lent 1500 dollars to Draffin, and took a deed of trust on the 200 acres of land to secure the payment. At a subsequent sale under the deed, made in 1831, he purchased the land for 1700 dollars, and took a deed from the trustee. He therefore resisted the claim of Fagg, and insisted that if it should be established, the burthen should be thrown on Fagg for his indemnity, or if that could not be done, that Douglass should contribute ratably with him in proportion to the relative value of the land.
    Among the exhibits in the cause were the following. — A copy of a record from Albemarle county court, shewing that in November 1823, Thomas Draffin had brought an action of debt against Fretwell on a single bill dated July 4th 1817, for £Í63. 17. 3. and obtained a judgment by confession, on which a fieri facias issued in June 1824, which was never returned. The single bill (which was copied into the record) was in these words: *“On a settlement with mr. Thomas Draffin, I owe him ,£163. 17. 3. As witness my hand and seal, this 4th of July 1817. Crenshaw Fret-well [SealJ.” — An extract from the same court, shewing that in August 1828 an execution issued in behalf of Thomas Draffin against Fretwell for the sum of 200 dollars, with interest from the 7th of October 1821, and costs, for so much money lent at the last mentioned date; which was returned executed on the defendant’s body, and he discharged by order of the court, on the ground that it had been levied when he was attending the court as a witness. — A copy of the schedule rendered by-Thomas Draffin on the 25th July 1829, when he took the oath of an insolvent debtor, in which schedule he included his claim under an execution against Fretwell for 200 dollars. —And a statement of the execution against Fretwell and Fagg upon the judgment on the injunction bond, with the sheriff’s receipt to Fagg for 1206 dollars 7 cents in full, dated 24th December 1828.
    There' were numerous depositions in the causé, bearing on the facts deposed to by Thomas Draffin, and on his interest in the land.
    The cause came on to be heard before the circuit court of Augusta on the 21st of June 1834, when the court declared it to be its opinion (for reasons stated in writing) that the plaintiff Fagg who had discharged the balance of purchase money for the land, with interest thereon, and the costs occasioned by the proceedings at law to recover the same, by paying the sum of 1206 dollars 7 cents on the 24th of December 1828, had a right, to the extent of that sum with interest thereon, to be substituted in the place of the creditor Boyd Miller, to whom said payment was made, and to subject said land to repayment thereof, and of the costs expended by the plaintiff in the prosecution of this suit; to which the defendants Douglass and Harper, the holders of said *land, were to contribute rat-ably. Whereupon commissioners were appointed to go upon the lands, and ascertain and report the relative value of the two parcels on the 13th of December 1827, the date of the decree in the suit of Draffin against Fretwell and others.
    From this decree Douglass appealed.
    Johnson and Peyton, for the appellant.
    Baldwin, Michie and the attorney general, for the appellee.
    
      
      Sureties — Rights of -Contribution — Subrogation.— Where there is a judgment or decree against a principal debtor and his surety, and a third party at the instance of the principal and for his sole benefit and without the assent of the surety, enters as surety for the principal in an obligation, the effect of which is to suspend the execution of the judgment or decree and thus prejudice the rights of the first surety, the equity of the latter is superior : and it seems to be well settled that in such case, the second surety would not be entitled to contribution from the first, and there is much authority for the proposition that the first would be entitled to indemnity from the second. This principle has been applied to injunction bonds, bail bonds, prison bounds bonds, forthcoming bonds, and appeal bonds. Burks, J., delivering the opinion of the court in Harnsberger v. Yancey, 33 Gratt. 540. As authority for the proposition, he cites Langford v. Perrin, 5 Leigh 552 ; Douglass v. Fagg, 8 Leigh 588; Givens v. Nelson, 10 Leigh 382 ; Stout v. Vause, 1 Rob. 169; Robinson v. Sherman, 2 Gratt. 178 ; Bentley v. Harris, 2 Gratt. 357 ; Leake v. Ferguson, 2 Gratt. 419 ; Preston v. Preston. 4 Gratt. 88.
      Thus, in Givens v. Nelson, 10 Leigh 382, 389, the principal in a bond, to indemnify his sureties therein, assigned a claim to a trustee in trust that he should collect the amount and apply the proceeds to the discharge of the bond. Before this claim was collected, suit was brought upon the bond and the sureties contributed ratably to its payment. One of the sureties obtained a decree against the principal for what he paid, and upon this decree sued out a ea. ea. which being executed on the principal, he entered into a bounds bond with sureties, and after-wards broke the condition, whereby the sureties in that bond became liable. It was held — on the authority of the principles deducible irom Douglass v. Faga, 8 Leigh 588, — that the sureties in the bounds bond could not resort to the trust fund — which the trustee in the meantime had collected — ior their reimbursement except to the extent of any surplus that might remain after the. full indemnification of the original sureties.
      So, in Bentley v. Harris, 2 Gratt. 357 361, the principal debtor in a judgment obtained an injunction thereto, and executed an injunction bond with a third person as surety ; the surety in the judgment not being a party to the injunction. It was held — on the authority of the principal case and Givens v. Nelson, 10 Leigh 382. — that, upon dissolution of the injunction, the surety in the ininnction bond was liable for the debt enjoined before the surety in the judgment.
      See. also, citing principal case. Dent v. Wait. 9 W. Va. 46; Myers v. Miller. 45 W. Va. 615, 31 S. E. Rep. 983. In the first of these two cases, the principa] case is cited as a leading case on the doctrine of substitution.
      For other cases on the subject of subrogation in respect to sureties, see, citingprincipalcase, Powell v. White, 11 Leigh 332 (note by president); foot-note. to Buchanan v. Clark, 10 Gratt. 165; foot-note to Preston v. Preston, 4 Gratt. 88 ; monographic note on "Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11.
      Debts — Payment by Stranger — Effect.—There have been cases in which it has been stated by the court that, where a stranger pays the debt of another without his knowledge and authority, such a payment absolutely extinguishes the debt; and the inference to be drawn from them is, that the debt is by such unauthorized payment utterly extinguished in law or equity. Neely v. Jones, 16 W. Va. 636. citing principal case. But Judge Green, who delivered the opinion of the court in this case, continuing, said : “But these views are not in other cases approves, and It has been decided, that a payment of a debt by a stranger without the authority expressed or implied of the debtor is no discharge of the debt, unless the payment is subsequently in some manner ratified by the debtor, but whenever ratified, it will relate back to the date of the payment and have the same effect as if it had been expressly authorized by the debtor, and therefore it may be ratified even after suit is brought upon it; and the debtor’s relying upon it as a payment is such a ratification. See Simpson v. Eddington, 10 Exchq. 845, 848 : Kemp et al. v. Balls, 10 Exchq. 610 ; Belshaw v. Bush. 11 C. B. (73 Eng. Com. Law R.) 207 : Whiting, Use of Sun Mutual Insurance Co. v. Independent Mutual Insurance Co., 15 Md. 314 ; Leavitt and Lee, Ex’rs of Hans Wilson v. Morrow, 6 Ohio St. 71 ; Webster and Smith v. Wyster, 1 Stew. (Ala.) 184.”
      To the point that a stranger paying the debt of another will not be subrogated to the creditor’s rights without an agreement to that effect, the principal case is cited in Neely v. Jones, 16 W. Va. 636, 641. See principal case also cited in Conrad v. Buck, 21 W. Va. 409.
      Sale of Land — Agreement of Vendee to Pay Lien Thereon — Effect.—Where the vendee of land, under his contract with the vendor, is bound to pay a debt which is a lien on the land, he becomes principal debtor and his vendor surety only, and the latter, and the creditors who succeeded to his equities, have the right to require the land held by the vendee to be subjected to the satisfaction of the lien which rests upon it in exoneration of the lands subsequently aliened by the vendor and encumbered by a deed of trust. Schultz v. Hansbrough, 33 Gratt. 582, 583, citing principal case.
      Judgments — Conclusiveness of. — There is no doubt that a judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subj ect-m atter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court, except on appeal, writ of error, or other proceeding provided for its revision. C. & O. R. Co. v. Rison. 99 Va. 32, 37 S. E. Rep. 824, citing principal case as authority. See also, foot-note to Shelton v. Barbour; 2 Wash. 64: monographic, note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   PARKER, J.

The only difficulty I have had in this case was occasioned by the terms of the decree in the suit of Draffin against Miller, Fretwell and others. It is evident that the dissolution of the injunction of Fretwell against Miller decided nothing as to the payment of the ¿£166. 3. 1. by Draffin to Fretwell. That matter was not put in issue by the pleadings, and the injunction ought to have been dissolved, and no doubt was dissolved, upon the ground that Fretwell had no right to the conveyance of the title which he sought. The same order must have been made, if Fretwell had proyed the payment by himself to Miller’s agent, of the ;£166. 3. 1. because it was clearly established that the purchase of the land was made by Fretwell and Douglass for the benefit of Robert Draffin. So too the decree in the case of Draffin against Miller and others, so far as it directs the title to be made to Robert Draffin for the land in the bill mentioned, and a release of Boyd Miller’s right, “so soon as it is ascertained that Miller has obtained payment of the said sum of ^£166. 3. 1. with interest &c. from the defendant Fretwell or his securities, or from any other person,’’ — without directly decreeing that Fretwell should pay that sum, —seemed to me not to conclude the question of the liabilitjr of Fretwell, so as to bind Fagg; because such a decree might have been properly made, whether Fretwell had received from *Draffin the ;£166. 3. 1. or not; and the fact that the decree fixed the liability of Fretwell for that sum, was perhaps rather matter to be inferred by argument from the decree, as having constituted one of its grounds, than directly adjudicated. See 1 Starkie on Fvid. 183, et seq. ; Id. 202. I was therefore inclined at first to think that the question of Fretwell’s liability had not been conclusively settled by the decree actually made, because the opinions expressed by the chancellor in the first part of it were rather the annunciation of the grounds and reasons for making the decree, than the decree itself. But further reflection, and conference with my brethren, have satisfied me that this impression was incorrect. The fact of the payment of the balance of the purchase money for the land, by Robert Draffin to Fretwell, who had given his bonds to Miller, is expressly alleged in the bill, and denied in the answer. It was therefore a matter directly in issue; and upon the evidence adduced on that point, the chancellor, in the first part of the decree, expresses the opinion that this balance of ^166. 3. 1. “though not paid over to the defendant Miller, as it ought to have been, by the defendant Fretwell, has been paid by the plaintiff to the defendant Fretwell.” This opinion I must regard as a judicial decision of the fact between Draffin and Fretwell, not to be afterwards drawn in question between them. It is a matter directly determined, upon an issue formally made between the parties; and public policy requires that it should not be again brought into litigation, unless fraud in obtaining the decree is alleged and proved. So too it is binding upon the surety of Fretwell, and upon all other persons, as an adjudicated fact: that is to say, no person, in any controversy, can be permitted to deny that Fretwell received the ;£166. 3. 1. from Draffin, and is bound for it. They may deny their own obligations to pay as surety or otherwise, but not his. Munford &c. v. Overseers of the Poor, 2 Rand. 313; Craddock v. Turner’s adm’x, 6 Leigh 116; Ray v. Clemens, Id. 600.

*It is unnecessary to decide how far this principle might be affected by the proof of a fraudulent combination to charge Fretwell. There is no such evidence in this cause, and the most that can be said is, that the decree was obtained on the testimony oí an interested or discreditable witness. Fret well’s attention was called to the evidence of that witness, and he might have shewn his interest or want of credit, if he had used ordinary diligence, by the same proof that the appellee subsequently produced. Even the discovery of new evidence, which merely goes to impeach the credit oí witnesses examined in the original suit, or oí cumulative witnesses to a litigated fact, is not sufficient to impeach a decree. Livingston v. Hubbs and others, 3 Johns. Ch. Rep. 124. Moreover there was other evidence strongly corroborative of Thomas Draffin’s, and in the present case itself there is no testimony outweighing the positive denial of the several answers, corroborated by circumstances, or disproving the receipt by Fretwell of the balance of the purchase money from Draffin to be paid to Miller.

Taking, then, the fact to be that Fretwell did receive this money, and ought to have paid it to Miller, the only other question is as to the right of Fagg to be substituted to the remedies of Miller against the land of Draffin. He claims this right, because he has paid Miller a debt binding Draffin’s land ; and although he has paid it as surety for Fretwell, ■who received the money from Draffin, and ought to have paid Miller, yet he contends that as Miller could charge the land, he, on the principle of subrogation, may charge it, as standing in the creditor’s shoes, and entitled to all his remedies, not only against his principal Fretwell, but all others liable for the debt; and for this he cites 1 Pothier on Obligations, part 2, ch. 6, art. 3, [427].

It is obvious, I think, that Pothier, in this passage, lays down the doctrine too broadly; and that in part 3, '*ch. 1, art. 6', 1 2, [520,] he states it more accurately, when he says “that all those who are bound for a debt for others, or with others, by whom they ought to be discharged either wholly or in part, have a right, upon paying, to demand a cession of the actions of the creditor against the other debtors.” If, in equity and justice, Draffin or the holders of the land under him be bound to discharge this debt or ‘any part of it to Fagg, then, and not before, he may ask a court of chancery to substitute him in the place of the creditor Miller. The doctrine of subrogation, it must be remembered, is the offspring of natural justice, and is not founded in contract. It is the creature of equity, and is so administered as to attain real essential justice, without regard to form. “He who, in administering it, would stick in the letter, forgets the end of its creation, and perverts the spirit which gave it birth.” Judge Carr in Enders &c. v. Bruñe, 4 Rand. 447. Now here it is attempted to charge Draffin, because some of the books lay down the broad proposition that a surety paying may require the creditor to subrogate him to all his rights, actions and hypothecations against all persons liable for the debt. But the courts, in applying the doctrine, have taken care to make it subserve the ends of justice. Thus they always enquire who is the principal debtor, and if any one comes into his room as to the creditor, they absolve previous sureties; holding that the supplemental surety comes also into the room of the principal debtor, as to these previous sureties. On this principle the case of Parsons v. Briddock, 2 Vern. 608, was decided, which is recognized in Wright v. Morley, 11 Ves. 12, and in all the subsequent cases. There, the original sureties, who paid, were substituted to the rights of the creditor against the bail: but certainly if the bail (the supplemental sureties) .had paid, they could not have had a cession of the action of the creditor against the sureties in the bond. Yet they were liable to the creditor, *and on the principle contended for by the counsel for the appellee, they ought to have been placed in his shoes.

The principal debtor, the real debtor in this case, is Fretwell. Douglass was an original surety, and the land of Draffin was also bound. When the judgment was obtained against Fretwell, and he gave a delivery bond with Thomas Draffin as his surety, if Robert Draffin had paid the debt, he would have been subrogated to the rights of the creditor, not only against Fretwell, but against Thomas Draffin, who had interposed himself between the principal debtor and the original sureties. After-wards, when Fagg became the surety in the injunction bond, although but a surety himself, yet he came in the room of Fret-well as to all sureties who would have had a right to call on Fretwell for payment, either directly, or by subrogation io the actions of the creditor. This is precisely the principle of the case of Parsons v. Briddock ; and it is the correct principle ; since, but for his interference, the debt might have been made out of the principal debtor, or his first supplemental surety Thomas Draffin, and Robert Draffin and those claiming under him might have been discharged.

If this be so, it would be an absurdity to hold that Fagg, paying for the real debtor, can be entitled to all the remedies of the creditor against Draffin or Draffin’s land, or against his grantees Douglass and Harper.

I am of opinion to reverse the decree, and dismiss the bill with costs.

TUCKER, P.

I take as the foundation of my opinion in this case, the fact that Draffin had, through his son Thomas, paid to Fretwell £166. 3. 1. the balance due to Miller, for the purpose of being paid over to Miller. This fact is settled as between Fretwell and Draffin, and cannot be contested by any third person. Fagg is no more entitled to contest it, than the surety in an administration *bot d can contest the justice of the judgment of a creditor against the estate. He is conclusively bound by what is decreed against his principal, for his obligation is to pay if the injunction be dissolved, and without any reference to the justice or injustice of that dissolution. He can neither appeal from it, nor call it in question, nor renew the contest by a new bill of injunction ; for that would be infinite, as every successive surety in the successive injunctions would, upon the same principles, have the same right. Fagg then is conclusively bound by the several decrees, unless he has successfully impeached them. This he has not done, — if it had been even competent to him to do it upon any other ground except confederacy between Fretwell and Draffin, which cannot be pretended. The only ground upon which his bill rests is the perjurj' of Thomas Draffin, which is not a sufficient ground for this anomalous proceeding. It is not a sufficient ground for a new trial or relief in equity (1 Johns. Ch. Rep. 322, 324; S Johns. Rep. 248), and certainly would not be so in this case, where the character of the witness was thoroughly sifted in the former suit; where the evidence was sufficient, without his testimony, to sustain the decree; and where the material fact, that Fretwell received the money, is proved by his own note, filed in the cause at law in which judgment was rendered against him for the amount.

Taking then as unquestionable the facts established by the decrees, that the purchase from Miller by Fretwell and Douglass was made for Draffin, and that he has paid Miller the whole purchase money except £166. 3. 1. which he has paid to Fretwell, to be paid over to Miller; how stands the case? The creditor, not having received the balance due to him, and being satisfied that Draffin had honestly paid it to Fret-well, sues upon the bond of Fretwell and Douglass, instead of endeavouring to throw the charge upon the land. This was *both equitable and prudent; for had he attempted to charge the land, Fret-well must have been a party, and the court would, in that suit, have '‘put the saddle upon the right horse,” or if it decreed against Draffin in favour of Miller, would have decreed over against Fretwell in favour of Draffin.

Judgment having been recovered against Fretwell and Douglass, and a fi. fa. levied on Fretwell’s goods, he gave a delivery bond, in which Douglass did not join, but Thomas Draffin became his surety. Judgment was rendered on the delivery bond, and affirmed on. appeal. Then comes the injunction; and Fagg becomes surety in the injunction bond. The creditor still pursues Fretwell by suit on this bond, and obtains judgment and sues execution against him and Fagg. By this time Fret-well is insolvent, and Fagg, before he pays off the execution, files this bill, seeking subrogation to all Miller’s rights — not against Fretwell, but against Draffin and his land 1

The execution against Fagg being unsatisfied when he filed his bill, he can only be looked upon in the light of a surety who is liable for a debt and is demanding subro-gation.

It is contended, however, that he is to be considered as a stranger wno has volunteered to pay off the debt. If so, it may well be questioned whether he has title to relief, since by our law no man has a right to pay another’s debt, for which he is not bound, except in the case of a bill of exchange, by the law merchant. It is conceded by Pothier, as a general rule, that a cession of actions cannot be compelled by a stranger, who pays a debt for which he is not liable. 1 Pothier, part 3, ch. 1, art. 6, § 2, [520]. He states truly, that in strictness, where a debt is paid, it is extinguished, and there is no longer an action to cede; but for the purposes of justice, by a fiction of law, the payment is looked upon as a purchase by the party who pays, and a sale by the creditor. *And so. in our courts of equity, though the judgment is in fact extinguished by the payment, yet it is kept alive in contemplation of equity, for the benefit of the surety. Per Marshall, C. J., in 2 Brock. Rep. 254. But this fiction will not be adopted where it will effect injustice, and particularly to-the prejudice of those having strong claims to exoneration. A stranger, it would seem, is denied the benefit of it, and cannot demand subrogation. Such at least is the suggestion of the late chief justice. 2. Brock. Rep. ubi supra. But even admit that as bonds in Virginia are assignable, the stranger who pays off a bond is to be considered as entitled to be subrogated to the creditor’s rights; the principle would still not avail the appellee. For he paid as-surety, and as surety for Fretwell; and the utmost limit of his rights was subrogation to the creditor’s rights against Fretwell, and against all who were bound for Fret-well’s debt, and whose right of exoneration was not equal or superiour to his own. If their equities were equal, the court would not interfere; and still less, if his were in-feriour.

Let us then examine the claims of the respective parties more closely. ‘‘The benefit which the law allows to the surety is, that when he pays, he may require of the creditor to subrogate him to all his rights, actions and hypothecations, as well against the principal debtor for whom he has become surety, as against all other persons who are liable for the debt.” How he who actually owes the money is the principal debtor; and here Fretwell was, both in form and substance, principal; in form, as he was bound in the bond to Miller, and in substance, as the money was due from and to be paid by him. Draffin, on the other hand, being bound for the money indeed, as his land was bound for it, but owing not a cent of it, stands in the character only of surety for it.

What was the effect of this relation of the parties? Why, as Draffin’s land was bound if Fretwell did not *pay, he had a right to demand that the creditor should either proceed (and that diligently too) against the real debtor, or should permit him to do so. This is a common equity. See 4 Desauss. Ch. Rep. 44, 227. And upon this proceeding, a judgment being obtained against Fretwell and Fagg upon the injunction bond, Fagg would be compelled to pay the money for the exoneration of Draffin. Now the creditor has done precisely that which Draffin had a right to demand that he should do. He has sued Fretwell and Fagg, instead of enforcing his claim against the land. He has preferred to recover his debt from Fretwell, who he well knew did owe it, rather than from Draffin, who he well knew did not owe it. And Fretwell being insolvent, he enforced payment from Fagg, as he was bound in equity to do, for Draffin’s indem-unification. And yet, as soon as this is done, — as soon as Draffin’s land is freed from the incumbrances, — it seems to be -supposed that the tide is to be rolled back upon Draffin, and he is to be overwhelmed by the reflux of the principle which had but just given him relief.

Had Draffin actually paid the money to Miller, he would have been entitled, according to the letter and spirit of the principle quoted from Pothier, to a subrogation to all Miller’s rights against Fretwell, and against all other persons bound for him. One of these was Fagg. If, then, upon the payment of the money, he would have a right to substitution against Fagg, it is impossible that Fagg can have a right of subrogation against him. The two pretensions are antagonizing and incompatible. The former I hold to be unquestionable, and the latter therefore can have no existence.

There is another view of this subject, which seems to me conclusive. Draffin is certainly entitled, upon payment of the money, to subrogation against Fretwell and Thomas Draffin. Thomas Draffin the surety in the delivery bond, on the principle of Parsons v. Briddock, *was entitled to subrogation against Fagg. Therefore Robert Draffin was entitled to subrogation against him, and of course he cannot have it against Draffin.

With these views, I am of opinion to reverse the decree, and to dismiss the bill with costs.

BROCKENRBOUGH, J., concurred.

BROOKE, J.,

concurring in opinion to reverse the decree, it was reversed accordingly, and the bill dismissed.  