The record in this cause having been considered by the Court, and the foregoing opinion prepared under chapter 14553, Acts of 1929, adopted by the court as its opinion, it is considered, ordered, and decreed by the court that the decree of the court below sustaining the plea of the defendant Quinn should be, and the same is hereby, affirmed, and the cause is remanded for further proceedings.
TERRELL, C.J., AND WHITFIELD, STRUM AND BROWN, J.J., concur.
ELLIS AND BUFORD, J.J., dissent.
ON REHEARING. Division B. Opinion filed March 30, 1931. 1. Where one Ferguson had the right to require one Quinn "to save harmless" the former, by paying mortgages, it follows that one Brogan, as Ferguson's creditor, has the right to enforce Ferguson's claim against Quinn, in a suit in equity where the purpose *Page 1312 of the bill is to settle the rights and liabilities of all parties interested in real estate encumbered by two mortgages involved in such suit.
2. The practice in cases like this of bringing one suit to settle all the rights and liabilities of the parties interested in transactions involving a particular piece of real estate is permissible and should be encouraged where it eliminates expense and delay regarding a controversy which by appropriate allegations in a single bill of complaint can be settled in one suit.
3. The modern authorities agree that the doctrine of subrogation has been steadily expanding and growing in importance and extent in its application to various subjects and classes of persons and that the agreement out of which conventional subrogation arises and upon which it rests may be express or implied.
4. Where, as between the parties to a deed, the grantee by his contract agreed to save harmless the grantor from "all liability whatsoever" encumbering the mortgaged property, the appellant as a mortgagee is entitled to the benefit of this contract though she was unaware of its existence when made, under the familiar doctrine that a creditor is entitled by, equitable subrogation, to all securities held by a surety of the principal debtor.
5. The rule in equity that a creditor is entitled, by equitable subrogation, to all securities held by a surety of the principal debtor does not depend upon the character of the liability of the principal debtor to the creditor, or upon the existence of any relation between the creditor and the surety for the principal debtor, but is founded wholly on the right of the creditor to avail himself of whatever rights the surety has as against the principal debtor.
6. Generally before a legal subrogation can be enforced there must be a full satisfaction of the entire debt of the original creditor.
7. But the rule that before a legal subrogation can be enforced there must be a full satisfaction of the entire debt of the original creditor, does not prevent the bringing of a single bill of complaint which has for one of its objects the settlement and adjudication of a claim of subrogation which can be given effect upon the making of the principal decree in the cause, upon rendition of which, the right of subrogation claimed will be brought into existence.
8. Our previous holding is re-affirmed to the effect that "an agreement by grantees that they will assume and pay and save harmless *Page 1313 the grantors from all liability may be regarded, we think with propriety, as a contract of indemnity on the part of the grantees and not as an assumption by grantees of, or promise by them to pay, an existing mortgage indebtedness."
9. In so holding, the Court did not overlook the well settled distinction between a contract to indemnify and an agreement to pay, nor the well settled rule to the effect that when the defend-out promises to pay a certain debt due from the plaintiff to a third person, that the effect of his promise is not restricted, either as to form of pleading, rules of evidence or the measure of damages, by the fact that the defendant by his agreement further agrees to indemnify the plaintiff and save him harmless.
10. Where a covenant in a deed discloses the grantee received and held the legal title to land merely as trustee for another, and such covenant is contained in a quit claim deed only, by which the grantor did not agree to deliver or protect possession, nor in terms to assume and pay any particular debt represented by notes, mortgages, taxes and other expenses, but only "all liability whatsoever" on account of same, such covenant must be construed according to the intention of the parties as gathered from the writing and the circumstances under which the writing was made and delivered as shown by the record in the particular case, and where it does not convincingly appear to this Court that a prior construction by the Chancellor of the instrument involved, which was once affirmed by this Court, is clearly erroneous, the construction previously made will be adhered to on re-hearing.
11. The peculiar circumstances and facts in the instant case are sufficient to support a construction on this appeal that the undertaking here involved was that of indemnity only, notwithstanding the general rule is to the effect that where there is a direct and positive covenant "to assume and pay" an indebtedness that such covenant is not impaired by a further covenant "to indemnify and save harmless" from such indebtedness.
12. An agreement to "assume and pay and indemnify and save harmless" from a debt may ordinarily be said to contain not one but two distinct stipulations: First, an agreement to assume and pay the debt in plaintiff's place and stead, and second, an agreement to indemnify and save harmless from all such indebtedness as well, thereby giving effect to both undertakings. *Page 1314
On rehearing of an appeal from an interlocutory decree of the Circuit Court of Palm Beach County; Hon. C. E. Chillingworth, Judge.
Decree sustaining plea to bill in equity reversed on rehearing and cause remanded for further proceedings.
Loftin, Stokes Calkins, of Miami, for Appellant;
Crawford May, of Jacksonville, for Appellees.