The motion of appellee for rehearing cites, as an authority with which our disposition of this appeal conflicts, the recent case of Willis v. Chowning, 40 S.W. Rep., 395 (90 Tex. 617 [90 Tex. 617]). It was there held (column 2, page 396), that "when the principal debtor in an obligation, to which there are sureties, dies, the payee may look to the sureties as primarily liable to perform the contract, and need not present the claim to the administrator for allowance and payment." Numerous authorities were cited to sustain this proposition.
To further strengthen the position taken and dispose of the contention urged, that a surety ought not to be held liable for a debt which the creditor *Page 496 was barred by limitation from collecting from the estate of the principal debtor, the learned judge who wrote the opinion, in the course of the argument, used this language: "Although the debt may be barred, yet judgment may be entered against the surety if he be liable thereon, in cases where suit may be maintained against the surety without joining the principal; and if the surety pay the debt which is at the time barred by limitation as against the principal, but is a valid obligation against the surety, such surety may recover against the principal or against his estate in case of his death. The right of action in favor of the surety arises when he pays the debt, and is not based upon the original debt itself, but upon the implied contract which exists at law between the principal and surety in such cases."
That the right of action in favor of the surety arises when he pays the debt, and not before, and that it arises out of the relation or implied contract between the principal and surety, we freely concede. We do not hold that he must sue upon the original or express contract, but only that he may do so. To quote from our original opinion, "the true principle is to allow the surety the option of suing on the original obligation, as assignee in equity, or on the implied assumpsit. "His cause of action does not arise till he discharges his obligation to the creditor, and it is founded upon the relation of principal and surety created by the original contract; but in order to save him completely harmless, equity steps in and subrogates him to all the rights of the creditor against the principal debtor, assigning to him, so far as may be necessary to make good the implied obligation of the principal debtor to indemnify the surety, the original obligation as well as every mortgage or other security collateral thereto.
To hold that equity will assign to him the collateral, the mere incidents of the original obligation, and not the obligation itself, when to do less would entail a loss upon the surety, seems to us both illogical and inequitable, and so it evidently seemed to the Supreme Court of this State when Justice Wheeler wrote the opinion from which we quoted on the original hearing, the reasoning of which still seems to us unanswerable.
In Willis v. Chowning, then, not only were the authorities cited sufficient to sustain the ruling there made, but also the further and able argument of Justice Brown appears to be complete, without holding that the surety must, but only that hemay, sue upon the implied contract, a proposition which, we think, in no way conflicts with our decision in this case. If, in addition to this remedy, the surety desires to avail himself of the benefits of the original obligation he has only to satisfy the creditor and sue the principal debtor upon it before it is barred by limitation.
The motion also cites Cleveland v. Carr, 40 Southwestern Reporter, 406, from the Court of Civil Appeals for the First District. What was there said (page 409, column 2, and page 410) upon the question at issue here was solely with reference to another trial, and, though supported by other authorities, is undoubtedly in conflict with Carpenter v. Minter, 72 Tex. 370, and that line of cases which doubtless Faires v. Cockrell, *Page 497 88 Tex. 428, was understood to overrule, but which we think, for the reasons given in our original opinion, should still be followed.
The motion is therefore overruled.
Rehearing denied.
Writ of error granted. Judgment of Court of Civil Appeals was reversed and judgment of District Court affirmed by Supreme Court. Boyd v. Beville, 91 Tex. 439.