SUBROGATION. The substitution of another person in the place of the creditor, to whose rights he succeeds in relation to the debt. That change which puts another per son in the place of the creditor, and which makes the right, the mortgage, or the se curity which the creditor has pass to the per son vvho is subrogated to him,—that is to say, who enters into his right. Domat, Civ. Law, pt. i. 1. t. vi.
It is a legal fiction by force of which an obliga tion extinguished by payment made by a third party is considered as continuing to subsist for the benefit of this tbird person, who makes but one and the same person with the creditor in the view of the law. Subrogation is the act of putting one thing in place of another, or one person in place of another. Guyot, Repertoire Universelle, Sub rogation, sect. ii.
The substitution of one creditor to the rights and securities of another. Subrogatio est trans fusio unius ereditoris eadem vel conditione. Merlin, Inst. de Droit, Subrogatio.
Subrogation gives to the substitute all the rights of the party for whom he is substituted. 4 Md. Ch. Dec. 253. Among the earlier civil-law writers, the term seems to have been used synonymously with subatitution ; or, rather, substitution included subrogation as well as its present more limited sig nification. See Domat, Civ. Law, passim; Pothier, Obl. passim. The term substitution is now almost altogether oonfined to the law of devises and chan cery practioe. Se0 SEMSTITUTION.
The word subrogation is originally found only in the civil law, and nits been adopted, with the doc trine itself, thence into equity ; but in the law as distinguished from equity it hardly appears as a term, except perhaps in those states where, as in Pennsylvania, equity is administered through the forms of law. There the term subrogation, adopted from the Roman law, has of late years come into quite general use. 6 Penn. St. 504. Tho equitable doctride of marshalling assets is plainly derived from the Roman law of subrogation or substitution ; and although the word is or, rather, has been used sparingly in the oommon law, many of the doctrines of subrogation are familiar to the oourts of common law.
Subrogation differs from cession in this that while cession only substitutes the one to whom the debt is ceded in place of the ceder, in subrogation the debt would have become extinguished but for the effect of the subrogation; and, also, because although subrogation supposes a change in the person of the creditor, it does not imply novation ; but, through the fiction of the law, the party who is subrogated is considered as making only one q,nd the same person with the creditor, whom he succeeds. Masse, Droit Commerciel, Payment in Subrogation.
It is one thing to decide that a surety is entitled, on payment, to have an assignment of the debt, and quite another to decide that he ie entitled to be subrogated or eubetituted as to the equities and securities to the plaoe of the creditor, as against the debtor and hie oo-sureties. Story, Eq. Jur. 493, n.; 2 McLean, C. C. 451; 1 Dev. Ch. No. C. 137.
Subrogation of persons is of three sorts:— Firat, the canonists understand by subrogation the succession of a priest to the rights of action of the occupant of a benefice who has died during a suit. Guyot, Repert. Univ. Subrogation of Per sona, sect. 1.
Second, the second sort arose from a local ous tom of the Bourbonnais, and had for its object the protection of the debtor from the effects of collu sion on the part of the attaching creditor.
Third, subrogation in fact to aliens and pledges, which is only the change of one creditor for an other. See Guyot, ut aup., and, also, Masse, Droit Commerciel.
Nearly all the instances in which the common law has adopted the doctrines of subrogation have arisen under this latter class.
2. Conventional subrogation results, as its name indicates, from the agreement of the parties, and can take effect only by agree ment. This agreement is, of course, with the party to be subrogated, and may be either by the debtor or creditor. La. Civ. Code, 1249.