An original stockholder compelled to pay calls on stock after its assignment, is entitled to be subrogated to the rights of the corpora tion against the delinquent assignee only upon clear proof of acceptance of. the trans fer by the latter ; Tripp v. Appleman, 35 Fed. 19.
In the civil law, whoever paid privileged debts, such, for example, as the funeral ex penses, had by subrogation the prior claim: Eorunn ratio prior est creditorunz quorum pe tunia ad creditoris privilegios pervenit. Dig. de reb. anc. jud. pos. 1. 24, § 3.
So, if during the community of goods aris ing from the relation of husband and wife, an annuity which was due from one of them only was redeemed by the money belonging to both, the other was subrogated pleno jure as to that part of the claim ; Pothier, Obl. pt. 3, c. 1, art. 6, § 2.
In the civil law, the consignee of goods who pays freight is said to 4e subrogated to the rights of the carrier and forwarder ; Cour de Cass., 7th Dec. 1826. The common law does not recognize this right as a subro gation. But see LIEN.
In marshalling assets, where a mortgagee has a lien on two funds, if he satisfy him self out of one which is mortgaged to a jun ior mortgagee so as to extinguish the fund, the junior mortgagee is subrogated to the other fund ; Hunt v. Townsend, 4 Sandf. Ch. (N. Y.) 510.
The right of subrogation is a personal right, but may be assigned; Harrisburg Bk.
v. German, 3 Pa. 300; and the creditors of the surety may claim the benefit of the right ; Neff v. Miller, 8 Pa. 347; Bibb v. Martin, 14 Smedes & M. (Miss.) 87. As to which of two parties liable for the debt shall be subrogat ed, see Bellows v. Allen, 23 Vt. 169.
Where one is subrogated to a mortgage, it is not necessary that it be assigned to him ; Walker v. King, 45 Vt. 525; though such assignment would only strengthen his posi tion; Davis v. Pierce, 10 Minn. 376 (Gil. 302). The right of subrogation to a prior incum brance is sometimes enforced by a court of equity by compelling the holder of it to as sign it to the party entitled to subrogation ; Johnson v. Zink, 51 N. Y. 333; Appeal of Lyon, 61 Pa. 16.
One who is liable to contribute to the pay ment of a prior lien on property on which he holds security, who is obliged to pay the whole of such claim to protect his own inter est, may be subrogated thereto for the pur pose of compelling contribution from the other persons liable for a part thereof; Tar-1 bell v. Durant, 61 Vt. 516, 17 Atl. 44.
The weight of authority denies subrogation when the sole object of a suit in equity is to avoid the statute of limitations ; Burrus v.1 Cook, 215 Mo. 496, 114 S. W. 1065.
The creditor need not be made a party to a bill to obtain subrogation ; M'Nairy v. Eastland, 10 Yerg. (Tenn.) 310.
See LIEN ; MARSHALLING ASSETS.