Musgrave v. Dickson

Citations

• 172 Pa. 629
• 33 A. 705
• 1896 Pa. LEXIS 829

Syllabus

<p>Principal and surety — Subrogation—Partial payment — Equity.</p> <p>Subrogation rests upon purely equitable grounds, and will not be enforced against superior equities. Unless the surety pays the debt in full he is not entitled to subrogation, and until this is done the creditor will be left in full possession and control of the debt and the remedies for its enforcement.</p> <p>The settlement of an account between a surety and the debtor fixes the amount of the liability of the latter and the extent of the right to indemnity, but it does not affect the right of subrogation, which is never allowed. to the prejudice and injury of the creditor.</p> <p>PracUce, G. P. — Practice, S. G. — Exception to commissioner's report— Assignment of error.</p> <p>Where an answer is filed to a petition for subrogation denying that the debt has been paid in full, and the case is referred to a commissioner who reports in favor of subrogation without noticing the averment of the answer, and the report is sustained by the court without taking into consideration the averment of the answer, and the omission is made the subject of an exception to the report and also of an assignment of error, the Supreme Court is bound to consider the question, although its importance may have been an afterthought.</p>