
    Henry H. Neal v. Simeon Nash et al.
    1. Where a surety, in a judgment against him and his principal, pays the amount thereof to the judgment creditor, with the understanding and agreement that the judgment shall remain in force and be assigned to him by such creditor, and procures the assignment accordingly, he may sustain an action to be subrogated to the rights of the creditor in the judgment, and when it becomes dormant, to revive and enforce it, in his favor, against the principal debtor.
    2. The statutory period of limitation applicable in such action — it being for equitable relief only — is ten years.
    Error to the Court of Common Pleas; reserved in the District Court of Scioto county.
    On the 25th day of April, 1868, Henry H. Neal filed a petition, in the Court of Common Pleas of Scioto county, against Simeon Nash and Henry W. Gilman, setting'forth that, at the February term, 1856, Gilman recovered in said court a judgment against Nash as principal, and Neal as surety, for $1,647.72 debt, hnd $5.32 costs; that Nash refused or neglected to pay the judgment, and the same could not be collected of him by execution, wherefore Neal was compelled to settle the judgment with Gilman, and thereupon paid him the amount thereof, with the understanding and agreement between them that the judgment should not be satisfied, but was to remain in full force and effect, and Neal was to have the benefit of it, with all the rights and remedies of Gilman against Nash to collect the same ; that the judgment was subsequently assigned by Gilman to Neal; that the judgment remains unpaid by Nash, and became dormant in June, 1867; and the whole amount of the judgment is due from said Nash.
    The prayer of the petition is, that Neal may have the judgment revived against Nash; that he may stand in the stead of Gilman, the original plaintiff, in the judgment, and have all the rights and remedies he was entitled to in the collection and enforcement of the judgment; and such* other and further relief as he is justly entitled to.
    To this petition Nash demurred, because; 1. The petition does not state facts sufficient to constitute a cause of action ; 2. The claim set forth in the petition sought to be-revived against him, is barred by the statute of limitations;, and, 3. The plaintiff has no right to a revival of the judgment against the defendant.
    The court sustained the demurrer, and dismissed the petition, to all which the plaintiff excepted.
    Thereupon, the plaintiff filed his petition in error, in-the District Court, to reverse the judgment of the Court of' Common Pleas, on the ground that the court erred 'in sustaining the demurrer, and in rendering judgment against the plaintiff. The case was reserved in the District Court for decision in this court.
    
      Henry S. Neal, for plaintiff in error:
    Does a judgment, when paid by a surety, become absolutely extinguished, irrespective of the wishes and intentions of the parties, so that there is nothing left of it to be-revived, or upon which this action can be predicated ?
    Both upon principle and authority, I claim said judgment-is not only not extinguished, but in any case, where it is not the intention of the surety that his payment shall operate as an extinguishment, it does not; said judgment remains in. full force and effect, and the surety may become substituted to the place of the creditor, either by voluntary cession, or by subrogation. Grant v. Ludlow, 8 Ohio. St. 20, et seq.; Commercial Bank of Lake Erie v. Western Reserve Bank, 11 Ohio, 444; King v. Baldwin, 2 Johns. Ch. 554; 1 Story Eq., sec. 638; Seymour v. King, 11 Ohio, 342; Morris’ Appeal, 56 Penn. St. 46; Matteson v. Thomas, 41 Ill. 110; Barns v. Huntington Bank, 1 Penn. 395; Cheesborough v. Millard et al., 1 Johns. Ch. 409. Also, 2 Rawle, 132; 1 Hill C. R. 344; 1 Comst. 595; 6 Paige, 32; 1 Penn. St. 512; 28 N. Y. 271, et seq.; Hays v. Ward, 4 Johns. Ch. 130; Hodgson v. Shaw, 3 Myl. & K. 183; Wilks v. Harper, 3 Barb. Ch. 338; Clason v. Morris, 10 Johns. 524; Dering v. Earl of Winchelsea, 1 Eq. Lead. Cases, 110, et seq., notes.
    The sum of these authorities is this:
    1. A surety paying a judgment stands as the purchaser •of the same.
    2. He is entitled to all the remedies the creditor had.
    3. He may obtain the right to use these remedies, either by voluntary cession, or by subrogation.
    4. He may have execution issue upon the judgment so paid by him, and as a necessary consequence.
    5. May revive a judgment when dormant.
    I have cited these authorities to show what the law is in England, as also the other states of this Union. I am confident, however, that the decisions of this court are conclusive. Butler et al. v. Brickly, 13 Ohio St. 514; Neilson & Fry v. Churchill, 16 Ohio St. 556; Dempsey v. Bush, 18 Ohio St. 376.
    
      Simeon Nash, in person:
    The proceedings in this ease are a curiosity to myself, who have been in practice for some years: Whether it is a petition for subrogation, or a motion on behalf of one defendant to revive a judgment against them both against his co-defendant. In the first aspect of the ease, the defendant is met with the case of Neilson v. Fry, 16 Ohio St. 552, which decides that such a petition must be filed within six years from the time that the petitioner paid the money. In the cases of Fink v. Mahaffey, 8 Watts, 384, and Rittenhouse v. Levering, 6 Watts & Serg. 190, 198, the same doctrine is maintained. See also Bank of Penn. v. Rutins, 10 Watts, 152.
    There are two classes of cases in which the aid of a court of equity is sought: 1. When there is a legal claim which may be enforced in a court of law, and the aid of a court of equity is invoked in favor of the same as an aid in its collection ; 2. When the claim is one exclusively within the jurisdiction of a court of equity. In the first class of cases there must be an existing legal claim or debt, otherwise there is nothing for a court of equity to act upon. If there is no legal debt, there is nothing to call into action a. court of equity.
    And this must especially be the rule in Ohio since the case of Hill v. Henry, 17 Ohio, 9, which holds that our statute extinguishes the debt, or claim, and does not simply suspend the remedy.
    The following cases maintain in various aspects that,where there is a remedy at law and one in equity, the remedy in equity is gone, if the legal claim is barred by the’ statute of limitations.
    
      Marsh’s Ex’r v. Oliver’s Ex’r, 1 McCarter, (N. J.) 259; Smith v. Remington, 42 Barb. S. C. (N. Y.) 75; Bank of Gettysburg v. Thompson, 3 Grant, (Penn.) 114; Harris v. Mills, 28 Ill. 44; Alboo v. Dayton, 28 Ill. 325; Leggett v. Coffields, 5 Jones Eq. (N. C.) 357; Ib. 382; Ormsby v. Longworth, 11 Ohio, 667; Knight v. Browner, 14 Md. 1; Wright v. Leclaire, 3 Clark (Iowa), 221; Wilson v. Anthony, 19 Ark. 16; Brooks v. South C. R. R. Co., 8 Rich. Eq. (S. C.) 30; Teacle v. Gibson, 8 Md. 70; Manning v. Warren, 17 Ill. 267; Finney v. Harris, 30 Miss. (1 Geor.) 36; Sugg v. Thrasher, 30 Miss. (1 Geor.) 135; Manchester v. Mathewson, 3 R. I. 237; Hamilton v. Hamilton, 18 Penn. St. (6 Harris,) 726; Sedam v. Williams, 4 McLean, 31; Lindall v. Campbell, 6 Gill, 430; Bailey v. Carter, 7 Iredell’s Eq. 282; Dudley v. Price, 10 B. Mon. 84; Phalen v. Clark, 19 Conn. 421; Perkins v. Cartmill, 4 Harrington, 270; Buen v. Hane, 2 Barb. (N. Y.) S. C. 586; Berry v. Pierson, 1 Gill, 234; Wagstaff v. Smith, 4 Iredell’s Eq. 1; Lex. and Ohio R. R. Co. v. Bridge, 7 B. Mon. 556; Pratt v. Nathan, 5 Mason, 95; Burdell v. Grew, 8 Pick. 108; Farnam v. Brooks, 9 Pick. 212; 3 Paige’s Ch. 415; Miller v. Mitchell, 1 Bailey’s Ch. 437; Burclaine v. Shelton, 10 Yerg. 141; 5 Blackf. 506; 2 Gill & Johns. 307; Bank U. S. v. Daniel, 12 Peters, 32, and eases there cited; Henry Co. v. Winnebago and Drainage Co., 52 Ill. 454; Fahs v. Taylor, 10 Ohio, 104; Angell on Limitations, 186; 10 Ohio, 498, 503; 10 Wheaton, 152; Lockwood v. Wildman, 13 Ohio, 430, 452; Winslow v. Otis, 5 Gray, 360.
    That the payment is-an extinguishment, and that no subrogation can be had to the mere bond, note, or judgment, is sustained by the following cases: Copes v. Middleton, 1 T. 224; Dixon on Subrogation, 47; Ib. 54; Dowbiggins v. Bourne, 2 Younge & Collyer, 462; Dixon on Subrogation, 57; Hummett v. Wyman, 9 Mass. 138; Brockett v. Winslow, 17 Mass. 153; Bowditch v. Green, 3 Metcalf, 360; Sherwood v. Collier, 3 Devereux, 380; Hodges v. Armstrong, 3 Devereux, 253. The surety, can not take an assignment to himself, however, for that would be (payment) an extinguishment of the judgment. Briley v. Sugg, 1 Dev. & Bat. Eq. 366; Dixon, 71; Foster v. Trustee of Atheneum, 3 Ala. 300; Morrison v. Marvin, 6 Ib. 797; Dixon, 72; Neilson v. Fry, 16 Ohio St. 552.
    The following authorities show that there can be no revivor by one defendant against another: Norton v. Beam, 5 Ohio, 175; Reynolds v. Rogers’ Ex’rs, 5 Ohio, 169; Wolf v. Roundsford, 4 Ohio, 397; Dunlevy v. Ross, Wright, 287; S. P., Vredenburg v. Snyder, 6 Clark (Iowa), 29; Tyndall v. Carson, 1 Harr. 94; Murray v. Baker, 5 B. Mon. 172; Williams v. Fowler, 3 Mon. 316; Mills v. Connor, 1 Blackf. 7; Lake v. Brady, 3 Minn. 21; Hanly v. Adams, 15 Ark. 232. So the order to revive must be against all jointly. Bolinger v. Fowler, 4 Ark. 27.
    Nor does the code.change this state of the law. Section 417 (2 S. & C. 1061) simply declares that, if a judgment becomes dormant, it may be revived as is prescribed for reviving actions before judgment.
    But in this case the plaintiff can not revive, because the judgment is paid. Ontario Bank v. Walker, 1 Hill, 652, Bank of Selina v. Abbot, 3 Denio, 181. In the last ease the payment was made by a defendant, who was a mere surety See also Bank of the State v. Moseley, 1 Strobhart, 414. Subrogation is purely the creature of a court of equity, and with which a court of law has nothing to do. 2 Barb Ch. 458; Hodgson v. Shaw, 3 M. & K. 183; Mathews v. 
      Aikens, 1 Comst. 595; Sanford v. McLean, 3 Paige’s Ch. 117; Bangs v. Strong, 4 Comst. 315; 4 Ib. 312.
    It is not a right to the mere record of the judgment,but a right to reach, in the place of the plaintiff, any property on -which said judgment was a lieu, or personal property in possession of the plaintiff as a security for the debt. Eddy v. Trover, 6 Paige, 521; Watts v. Kinney, 3 Leigh, 272; Hays v. Ward, 4 Johns. Ch. 130; Matthews v. Aiken, 1 Comst. 600; Hodgson v. Shaw, 3 Mylne & Keen, 183; Croythorn v. Swinburne, 14 Ves. 159; Vail v. Foster, 4 Comst. 314; 4 Ib. 112; Bangs v. Strong, 4 Ib. 323.
    
      Henry S. Neal, in reply:
    The doctrine of Copes v. Middleton, and the cases following it, is not adopted by recent decisions. The Scottish courts never recognized that rule, and to get rid of it in England the act of 19 and 20 Vict., c. 97, was passed. Ontario Bank v. Walker, 1 Hill, 652, and Bank of Salina v. Abbott, 3 Denio, 181, were overruled by Alden v. Clark, 11 How. Pr. 210.
    Under our statute of limitation, an action like this is barred after ten years. Neilson & Churchill v. Fry, 16 Ohio St. 552.
   Day, J.

Two questions are presented: Are the facts stated in the petition sufficient to constitute a cause of action; and if so, is the action barred by the statute of limitations?

The case, in substance, is this: Gilman recovered a judgment against Nash and Neal, and it was certified therein that Neal was surety. To protect himself, Neal paid Gil-man the amount of the judgment, with the understanding that it should remain in force, and be assigned to him, and the assignment was made accordingly.

It is claimed that this transaction extinguished the judgment; and eases are not wanting to sustain that view of the case. But, however it may be as a technicality of law, it is settled in this state that it may be regarded as still subsisting in equity, and that a surety, who has paid a judgment under such circumstances, may sustain an action “to be substituted in the judgment, in the place of the creditor, to enforce it against the principal, and, if dormant, to revive it also for that purpose. Neilson v. Fry, 16 Ohio St. 552; Dempsey v. Bush, 18 Ohio St. 376. The petition, then, makes a good cause of action.

Is the action barred by the statute of limitations? It appears that more than six and less than ten years elapsed, after the payment by the surety to the creditor, before the action was brought. By the code, actions on implied contracts are limited to six years, and actions for equitable relief to ten years. If the case falls under the former limitation it is barred, otherwise it is not. It is claimed that the surety’s equitable action, to be subrogated in the judgment in the place of the creditor, is subject to the limitation applicable to an action by him against the principal, upon his implied promise to refund money paid for his use, which, is six years; and this is claimed upon the .authority of Neilson v. Fry, supra.

But in that case, suit was brought by one of several co-sureties in a judgment, paid by him, against the other sureties, for contribution of their proportionate share of the amount paid, and to be subrogated to the rights of the creditor in the judgment. The action was essentially for the recovery of money upon an implied promise; and, inasmuch as the judgment had been satisfied, without any ground of equitable relief, other than the payment of the judgment, and such relief could not be invoked until facts were proved to warrant a recovery against the co-sureties upon the implied promise arising between them upon payment by one, it was held that the limitation of six years applied. This was mainly on tire ground that the action was for a recovery against the co-sureties on an implied promise, aud not merely for equitable relief against the creditor and principal debtor; and, as that was the nature of the action, the period of limitation was determined .by it.

But it was conceded in that case, “that an action merely for subrogation, is an action for equitable relief, and falls under the limitation of ten years.” It was, moreover, admitted that “if the judgment had been kept alive, either by voluntary assignment of the creditor, or by a decree inequity against him, the case would have been wholly different.”

This is an action for equitable relief merely, and the judgment was “ kept alive,” so far as possible, by an agreement that it was not to be satisfied, but should remain in force, and it was assigned by the creditor to the surety.. No doubt it would have been kept alive had the assignment been to a trustee for the benefit of the surety. That, however, would have been a difference in form rather than in substance. In either case the surety would, in equity, have been the owner of the judgment; and, in either ease, the supposition of the extinguishment of the judgment, not its subsistence, would have been the “fiction.” Surely, the position of the principal, whose duty it is to pay his own debt, can derive no equitable aid because his surety holds-the assignment in his own name instead of that of a trustee.

But it is enough to know, that according to the settled, law of this state, the judgment was not so extinguished, in equity, as to prevent the surety from being subrogated to all the rights of the creditor in the judgment itself. This is all that is invoked. A judgment on a contract, expressed or implied, is not sought; nor is the relief sought based on. a contract as the ground of an original recovery, but it rests merely on the just right of the surety to a judgment already existing. The action is grounded on the equitable right of the surety, whether by assignment- of the creditor or by subrogation merely, to stand in the shoes of the creditor in the judgment against his principal, and in the place of the creditor, to enforce it against him. The action-is brought to assert this equitable ownership of the judgment, and, being dormant, to revive and enforce it in favor of the party justly entitled to it. The action, therefore, 'being- purely equitable in its character, and not seeking a> recovery on an implied contract, is not controlled by the-limitation of six years.

Since then the action is not barred by the statute of limitations, and may be sustained without the aid of the act of March 19, 1868 (S. & S. 744), it becomes unnecessary to consider further the effect of that act in connection with this case. At most it is but a statutory remedy for what otherwise could be attained only by the civil action of the-code, in the nature of a proceeding in equity. The surety’s remedy of subrogation and revivor, by action, is barred in-ten years; whether any of the statutory periods of limitation apply to the remedy now afforded to the surety, by a. statutory revivor of a judgment in his favor against the-principal, is a question not involved in this case; for it may be regarded, as before stated, as a civil action, independent of the statute.

With these views of the case, we are constrained to hold that the Court of Common Pleas erred in sustaining the-demurrer to the petition. The judgment must therefore be reversed and the demurrer overruled; and, as the demurrant may desire to answer, the cause will be remanded to that court for further proceedings.  