ON REHEARING.
On the day the decision was handed down in this cause a brief on behalf of the appellant, by Judge Lucas, came to the hands of the Court, which was asked to be taken as petition for rehearing. The brief starts out with the statement that “the nature of the doctrine of subrogation is fully discussed by this Court in two cases in 29 W. Va. and 2 S. E., by those pre-eminent jurists, Judge Snyder and Judge T. C. Green,” and says : “They both concur in defining the doctrine [quoting point 1, Syl., in case of McNeil v. Miller, 29 W. Va. 480, 2 S. E. 335] : “The doc*614trine of subrogation, being the creature of courts of equity, is so administered as to secure substantial justice without regard to form, and is independent of any contractual relation between the parties to be affected by it.” If he had included in his quotation the second point in the syllabus, he would have given us the whole scope of the doctrine which holds that “it is not applied in favor of one who has officiously, and as a mere volunteer, paid the debt of another, for which neither he nor his property was answer, able; but it will be applied whenever the person claiming its benefit has paid a debt for which another was primarily answerable, and which he was compelled to pay in order to protect his own rights or save his own property?” He also cites Hinchman v. Morris, 29 W. Va. 673, (2 S. E. 863 Syl. point 1): “The levying and collecting óf a tax, whether state or county, is a matter solely of statutory creation. Such taxes are not debts; and unless they are expressly, or by plain implication, authorized to be assigned legally or equitably, they are incapable of assignment, and no one can be subrogated to the rights and remedies of the State,” —and seems to rely very strongly upon this ruling to support his position that the sureties cannot be subrogated to the rights and remedies of the State. This, however, is not a general proposition that no one can be subrogated to the rights and remedies of the State in any case, but in the enforcement of the collection of its revenues in the shape of taxes, as was sought to be done in that case. Hinchman v. Morris, supra. There are abundant authorities in support of subrogation, to all the rights, remedies, and priorities of the State, of sureties who have paid the. State’s judgment. The case last cited is dealing with taxes uncollected, as against the individual charged therewith or his estate, when the sheriff had paid the same to the State, and was seeking to be substituted to the lien of the State for the taxes on the lands of the estate of Morris; and it is there held that taxes are not debts, and not capable of assignment, unless they arc expressly, or by plain implication, authorized to be assigned legally or equitably. But the status of the case at bar is wholly different. The sheriff gave bond for the faithful discharge of his duties. He *615failed to perform his duties. Surely, this bond is a contract. Suit is brought upon it, and a large judgment recovered against him and his sureties on this contract. Upon default being made by the sheriff, he became indebted to the State. Whether he had collected the taxes, or failed to collect them is immaterial. He had failed to return them as delinquent; and thereby the State, because of the default of its officer, had lost its remedy against the property of the taxpayer, and the only remedy it had was to proceed against the sheriff, its debtor, and his sureties, on the bond he had given. It was no longer taxes due the State which was under the statute a lien upon the property upon which it was levied, but a debt due to it from its defaulting officer. All the elements of taxes had been eliminated. I am unable to see the application of Dent v. Wait's Adm'r, 9 W.Va. 46, cited by appellants. In that case Crichton had made his negotiable1 note to Wait, who negotiated.it. Protest followed. The bank secured judgment against maker and indorser, and execution was levied on property of Crichton, the principal, debtor, who, with Dent as surety, gave forthcoming bond, which was forfeited, and Dent compelled to pay. In a suit to collect, by right'of substitution, against the estate of Wait, the court properly held that Crichton was the piincipal debtor; that Dent relieved Wait at law by becomiug the security of Crichton, and could not charge the estate of Wait, under the equitable doctrine of subrogation. Perrin v. Ragland, 5 Leigh 552; Douglass v. Fagg, 8 Leigh, 588. In Dent v. Wait's Adm'r, supra, the opinion says: “Thereis no doctrine better settled in this State than that, when a security pays a judgment for another, he is entitled to be subrogated to all the rights and remedies of the creditor against the principal debtor subsisting at the time he became so bound for the debt.” Robinson v. Sherman, 2 Grat. 178; Powell's Ex'rs, v. White, 11 Leigh, 309; Preston v. Preston, 4 Grat. 88; Hill v. Manser, 11 Grat. 522.
It is contended that Enders v. Brune, 4 Rand, 438; cited in the original opinion, referred to the United .States statute, and only carried the principle as far as the statute expressly provided, and which would not be extended. On *616the contrary, the opinion quotes the statute, and shows the rights of sureties under it, and then asks: “Is the case of the plaintiff’s within this last act? I incline to think not. The law speaks of principal and surety in the bond. Although these bonds were executed by Bruñe for the debt of Shelton & Co., and the plaintiff by discharging them paid their debt, yet Shelton & Co. were not principals, and the plaintiff’s sureties, in the bonds.” In the syllabus it is held: “Where A. gives his bond for duties on goods imported into the United States for B., the importer, and B. is not bound in the bond, if A. discharges the bond it seems that he cannot be placed in a position of the United States, as to priority, in a claim against A., under the law of congress. But upon general principles of equity, A., in such case, will be substituted in the place of the creditor (the United States), and have every preference that the United States were entitled to.” The case of U. S. v. Ryder, 110 U. S. 730, (4 Sup. Ct. 196) cited by appellant, was a suit brought by Ryder as surety on a recognizance in a criminal proceeding, where the court held that “subrogating a surety on a recognizance in a criminal case to the peculiar remedies which the government enjoys is against public policy, and tends to subvert the object and purpose of the recognizance.” It is insisted that, if appellees are subro-gated at all to the rights of the State, their rights can only date from the date of the judgment in favor of the State. In Orem v. Wrightston, 51 Md. 34, cited in the opinion first filed herein, and other authorities there cited, as well as in Enders v. Bruñe, supra, it is held that the surety is entitled to all the securities, liens, and priorities of the creditor; and, as stated in Enders v. Brune, he is entitled “to have every preference that the United States were entitled to.” But we are told that, “if appellees were thus entitled, by their laches, they have defeated their right of subrogation.” The State is not liable for the laches of its officers, nor estopped by their conduct. U S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vanzandt, 11 Wheat. 184; Dox v. Postmaster General, 1 Pet. 318.
Section 25, chapter 30, Code, provides that “the taxes collected under this chapter shall be paid into the treasury as *617follows: One-half of such taxes shall be paid on or before the 20th day of January in the year next after the said taxes shall have been assessed; one-fourth on or before the first day of May, and the remainder on or before the first day of August in such year.” The sheriff’s term expired December 31, 1892. He had until August 1, 1893, to pay in the last fourth of the taxes for 1892. The State commenced her suit December 13, 1894, and obtained judgment April 27, 1895. Appellees paid the judgment August 6, 1895,andinstitutedthissuitNovember26,1895, butlittleover three months after their right accrued. It is not contended that, if the sureties had not paid the judgment, the appellants, or any of them, could have prevented the State from proceeding to exhaust the assets of the sheriff, Miller, in the satisfaction of its judgment, and surely they are in no worse condition because the sureties proceed against it. What new rights have accrued to appellants, or what rights of innocent parties have intervened, to be affected by any delay on the part of appellees in asserting their rights, which would not be equally affected if the State, and not the appellees, was pressing the collection of the judgment against the assets of the sheriff. Appellant’s references to Sheld, Subr., and to 2 Brandt, Sur., are on the subject of laches and are based on decisions where, by the laches of the party seeking to be subrogated, the rights of others had intervened, as in Gring's Appeal, 89 Pa. St. 336, cited by appellant: “A joint judgment debtor was forced under execution to pay the whole debt. It was afterwards shown that he was only a surety. He neglected to have the judgment marked to his use for more than a yeai after its payment. Meanwhile the property of the principal debtor was sold, and the surety claimed that he was entitled to be subrogated to the rights of the creditors under the judgment as against subsequent judgment creditors. Held, that he had not exercised due diligence in having the judgment marked to his use, and his claim could not be allowed.” This is about the strongest case cited, and in this case it was only after the sale of property that it was discovered that Gring was a surety, and the court say “that it cannot be permitted that a secret equity may be *618held unasserted until holders of legal rights have been thrown off their guard, and lost their opportunity to protect themselves, by attending a sale against it, and then be brought forward, to the injury of those who had no notice of their existence. ” Clevinger v. Miller, 27 Grat. 740, is cited in support of appellant’s contentions. That simp-ply holds that “a sheriff or other officer who pays an execution in his hands for collection, without an assignment at the time of the judgment on which it is founded or the debt, is not entitled to be subrogated to the lien of the creditor whose. debt he has paid, as against other creditors having liens by judgment or otherwise.” The case of the officer is very different from that of a surety of the debtor who is primarily liable, and who has been compelled to pay his principal’s debt. The officer was under no obligation to pay the debt. He had a simple duty to perform, — to levy the execution and collect the money, if he could; if not, to return the execution. Having paid the debt without assignment, as against other creditors having liens, by judgment or otherwise he is regarded as a mere volunteer. So, also, appellant’s citation of People v. Onondaga Common Pleas, 19 Wend. 79, was a case where a sheriff levied an execution on personal property, and left it with the execution defendant, who removed it from the county, and the sheriff was made liable for the amount. The court on notice, to the defendant, permitted a new execution to issue for the benefit of the sheriff, and he levied on the real estate of the defendant, saving, however, the rights of subsequent in-cumbrancers attaching after the removal of the personal property. And the reason given for it was that the levy by Luther (the sheriff) on the personal property was frima facie a satisfaction, and might well have induced the other creditors to suppose that the first judgment was satisfied, and led them on, in their own suits, to expense and trouble. ‘‘All this was very likely in consequence of Luther’s neglect. He was careless in not keeping the property, andin leaving it with the defendant.” In Hoge v. Brookover, 28 W. Va. 304, judgment was rendered for the State, May 9, 1889, the sureties having paid the judgment; *619aud in August, 1892, more than three years after the judgment, filed their bill to be subrogated to the rights of the State which was done. The court in that case, after quoting the act of February 28, 1872, which is the same as section 39, chapter 35, Code, withoutthe last clause, say :“This goes much further than could be claimed for the common law because it makes a judgment, thereafter secured, a lien on all the preperty of sheriff’s collectors or their securities, or either of them, from the time when they respectively were served with such notice or summons, pursuant to which the judgment was afterwards recovered. The policy of the State, as manifested in this act, was effectually to prevent any fraud by which she should bedeprived of her revenue or debts due her.” In Hawker v. Moore, 40 W. Va. 49, (20 S. E. 848). Judge Holt, in speaking of the doctrine of subrogation, says: “It is eminently calculated to do exact justice between persons who are bound for the performance of the same duty or obligation, and is one, therefore, which is much encouraged and protected. ‘Equality is equity,’is on this branch its maxim. It springs naturally out of the two equities of contribution and exoneration, and is in fact one of the means by which those equities are enforced;” and citations, page 51, 40 W. Va., and page 849, 20 S. E. And continuing, he further says: “Here the plaintiff has paid off the judgment and asks the court to give him the benefit of the creditor’s lien. Who can object to this? Who is injured byit? Not the bank, for they have received their debt from the plaintiff, and justice binds them to give the plaintiff their vantage ground. Not the principal debtor, for he is insolvent, and has no interest in the matter. * * * The other ci editors cannot complain, for the debt has in truth not been paid, because not paid by the one ultimately bound, but by others, who became his unwilling creditors, in due course of law. But if there should be any one who, by any rule of strict law, or in equity and good conscience, stands on higher ground, or for any reason has a better right, hewill not be displaced, or his right disturbed, for that is the essence of the doctrine.” The statute gave the judgment of the State priority over all judgments recorded or laws *620created after service of process in the action instituted by the State, and the rig-hts of no bona fide purchaser without notice intervene, and I am unable to see how or in what manner the complaining- creditors are injured. I see no sufficient reason for changing- my conclusion in this cause,
Afiirmed.