Exchange Building & Investment Co. v. Bayless

Citations

• 91 Va. 134
• 21 S.E. 279
• 1895 Va. LEXIS 13

Syllabus

<p>1. Subrogatio'n—Deed of Trust—Additional Security.—A surety who was not originally bound for the debt, but who comes in during the prosecution of a remedy against the principal for the debt, cannot, by subrogation, obtain a preference over the creditor of the principal whose debt is secured by a lien which attached before the surety became bound. So, where a debt is secured by a deed of trust, and the debtor afterwards gives a negotiable note with accommodation endorsers, as additional security for a part of the debt, and the endorsers pay the note, they cannot be subrogated to the rights of the creditor to his detriment in the collection of the residue of his debt.</p> <p>2. Subrogation—Doctrine.—The doctrine of subrogation is of purely equitable origin and nature, and its operation is always controlled by equitable principles. It is never enforced so as to defeat or interfere with a superior or equal equity of third persons, or with the legal right of third persons growing out of an express contract.</p> <p>3. Change oe Contract—Release of Surety—Extension of Tim.e—Reservation of Rights.—Any change of the contract by the principal, however slight, without the consent of the surety, releases the latter from all further liability. And where extension of time of payment is given to the . principal, without the consent of the surety, in pursuance of a binding legal contract, the surety is at once released from his obligations. But if, in.the contract for extension, all the rights and remedies of the surety are preserved unimpaired, so that he has the same rights and remedies after the contract as before, the surety is not discharged.</p>