SUBROGATION. The substitution of an other 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 person who is subrogated to him,—that is to say, who enters into his right. Domat, Civ. Law, pt. i. 1. iii. t. i. § vi.
It is the substitution of another person in place of the creditor, so that the person substituted will succeed to all the rights of the creditor, having reference to a debt due him. It is independent of any mere con tractual relations between the parties to be affected by it, and is broad enough to cover every instance in which one party is required to pay a debt for which another is primari ly answerable, and which in equity and con science ought to be discharged the latter; Johnson v. Barrett, 117 Ind. 551, 19 N. E. 199, 10 Am. St. Rep. 83.
It is a legal fiction by force of which an obligation extinguished by payment made by a third party is considered as continu ing to subsist for the benefit of this third person, who makes but one and the same person with the creditor in the view of the law.
Subrogation gives to the substitute all the rights of the party for whom he is sub stituted; Ohio L. Ins. & T. Co. v. Winn, 4 Md. Ch. 253. Among the earlier civil-law writers, the term seems to have been used synonymously with substitution; or, rather, substitution included subrogation as well as its present limited signification. See Domat, Civ. Law, passim; Pothier. Obl. passim. The term substitution is now almost alto gether confined to the law of devises and chancery practice. See SUBSTITUTION.
The word subrogation is originally found only in the civil law, and has been adopted, with the doctrine itself, thence into equity: but in the law as distinguished from equity It hardly appears as a term, except perhaps where, as in Pennsylvania, equity is admin istered through the forms of law. The doc
trine of marshalling assets is plainly deriv ed from the Roman law of subrogation or substitution; and although the word is, or, rather has been, used sparingly in the com mon law, many of the doctrines of subroga tion are familar to the courts of common law.
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 is entitled to be subrogated or substituted as to the equities and securities to the place of the creditor, as against the debtor and his co-sureties: Story, Eq. Jur. § 493; Dennis v. Rider, 2 McLean, 451, Fed. Cas. No. 3, 797; Williams v. Washington, 16 N. C. 137.
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.
"The doctrine of subrogation is derived from the civil law (Springer's Adm'rs v. Springer, 43 Pa. 518). In this country, un der the initial guidance of Chancellor Kent. its principles have been more widely devel oped than in England (Furnold v. Bank, 44 Mo. 338). It is treated as the creature of equity, and is so administered as to secure real and essential justice without regard to form (Id.), and is independent of any con tractual relations between the parties to be affected by it (Eaton v. Hasty, 6 Neb. 419, 29 Am. Rep. 365). It is broad enough to in clude every instance in which one party pays a debt for which another is primarily an swerable, and which in equity an ] gool con science should have been discharged by the latter (Harnsberger v. Yancey, 33 Gratt. (Va.) 527. See Johnson v. Barrett, 117 Ind. 551, 19 N. E. 199, 10 Am. St. Rep. 83)." Sheld. Subr. § 1; Har. Subr. 1, 22.
Subrogation does not take place until the payment of the whole debt; Columbia Fi nance & Trust Co. v. Ry. Co., 60 Fed. 794, 9 C. C. A. 264, 22 U. S. App. 54.