
    Mary R. Bugg v. Alfred Allen.
    Husband and Wife — Surety—Subrogation.
    Where a surety on a stay bond paid the judgment replevied by the husband and such surety, such payment did not invest the surety with the right' which a judgment plaintiff had against the estate off the. wife ,of the husband.
    APPEAL PROM HIOKMAN CIRCUIT COURT.
    September 17, 1873.
   Opinion by

Judge-Lindsay:

It may be conceded that the unreversed judgment in favor of Jones is (for the purposes of this suit) conclusive as to the liability of Mrs. Bugg’s land to be subjected to the payment of his debt, and that the execution of the injunction bond by Allen suspended the sale the court’s commissioner was about to make.

But it was not the injunction suit that finally saved the land from sale. Jones had the right to resort to his personal judgment against John Bugg, the husband, and it was the payment of this judgment that deprived Jones of the right to sell Mrs. Bugg’s land.

If Bugg had paid the judgment, he would not have been subro-gated to Jones’ rights. He would merely have relieved his wife’s land from' liability.

Allen replevied the personal judgment against the husband and finally paid it. He was compelled to pay the debt, not on account of his suretyship on the injunction bond, but because he replevied the judgment against the husband. This payment gave him- a right of action against his principal in the replevin bond, but it did not invest him with Jones’ rights against the wife, for the obvious reason that Bugg, the principal, would not have been so invested had he paid the debt, instead of leaving his surety fi> pay it.

It is not enough to say that Mrs. Bugg, the debtor of Allen, was benefited by the payment of the personal judgment against her husband.

Allen did not become the husband’s surety at her instance and if he had, she being a femé covert, was incapable of binding herself to perform a personal undertaking.

There was no privity between the parties to this action so far as the replevin bond is concerned, and Allen has been compelled to pay nothing as surety on the injunction bond. His petition ought therefore to have been dismissed.

Bradley, for appellant.

Bullock, for appellee.

Judgment reversed and cause remanded for proceedings consistent with this opinion.  