¶1Dissenting Opinion.
¶2— I can not divest my mind of the conviction that a proper application of the law governing the rights of bona fide purchasers of real estate leads to a conclusion different from that declared in.the prevailing opinion.
¶3A purchaser who pays full value, acts in good faith and exercises ordinary diligence, is always protected against rights of which he has not actual or constructive notice. In the case under consideration there is the utmost good faith, no want of diligence and no notice. It is not pretended that there was actual notice. Was there constructive notice ? The return of the sheriff showed that the judgment was satisfied. This was the record. The purchaser was not hound to look beyond the face of the record. I suppose bona fide purchasers have a full right to act upon natural and legal presumptions and can not go wrong when they do so. The natural presumption is that the original, principal debtor is the one who pays the debt, not his surety, who has received no benefit from the contract. This is also the legal presumption. It is embodied in the rudimental principle, that the law imputes to every man an intention to fulfil his obligation. The obligation to pay the judgment rested on the debtor, and not on his bail; and, in the absence of some showing-to the contrary, a purchaser would have a right to act upon the presumption that the judgment was paid by the person against whom it was rendered. It is upon this general principle that one of the rules governing the application of payments rests. It is universally held that where money is paid to a creditor holding several obligations, upon some of which, the debtor is immediately liable, and upon others contingently or collaterally, the payment will be applied upon the debt, for which the debtor is immediately liable, unless directions to the contrary are given. The reason of the rule is, that it *250is presumed that the debtor meant to pay and did pay his own debt. Snyder v. Robinson, 35 Ind. 311; 1 Am. L. Cases, 277.
¶4Another strong presumption comes to the purchaser’s relief. Payment of a judgment is presumptively an extinguishment. A party who shows payment makes out a prima facie case, and it devolves upon his adversary to show some reason why this prima facie case shall- not prevail. A purchaser finding of record in the proper place, made by the proper officer, an entry of payment of a judgment, has a right to presume, nothing to the contrary appearing, that it is extinguished. In doing this he but acts on a legal presumption, everywhere recognized.
¶5These legal presumptions are sufficient of themselves, as I think, to entitle the purchaser to hold the property free from the judgment, but they are strengthened by the further consideration that the law requires that the judgment shall be made out of the property of the principal debtor. What is the natural presumption flowing from this doctrine, if it be not that the money which paid the judgment came from the man who ought to have paid it ? If the debtor was shown to have had no property, there would be some reason for disputing the applicability of this presumption, but it here appears that he. did have pi’operty.
¶6In this particular instance the general presumptions referred to are strengthened by the fact that, although the bail’s property was levied on and sold, it was afterwards released by agreement. This fact lends support to the presumption that the principal debtor paid his own debt and thus secured the release of his surety’s property.
¶7It is not imposing an unreasonable burden upon a replevin bail, who pays a judgment, to require him to cause that fact to appear of record. Dead the judgment would be, but for the provisions of the statute, in favor of replevin bail, and surely the bail ought to have the return or record show payment by him, and thus secure the life-preserving power of the statute. It is no great task to take such precaution as will make *251tbe return show by whom the judgment was paid. One who desires to keep alive an apparently dead judgment, should do some affirmative act which will carry notice to bona fide purchasers. A man may push the right of self-defence to the last extremity upon appearances, and surely appearances may protect one who honestly buys property and pays full value. One who would make a thing different from what it appears to be, should do some affirmative act revealing the difference. It was in the power of the bail to have given notice that he paid the money. Ordinary diligence would have enabled him to do this, and a man who fails to exercise diligence, where diligence is necessary, ought not to have the helping hand of the court extended to him.
¶8This outline of my, views is sufficient to indicate, but not to unfold, the reasons which impel me to dissent from the opinion of the majority.