758
Opinion of the Court
ble action created by the courts. Summerlin is clearly distinguishable.
Whether in general a state-law action brought by the United States is subject to a federal or state statute of limitations is a difficult question. We need not resolve it today, however, because Guaranty Trust Co. v. United States, 304 U. S. 126 (1938), provides guidance in this case. There the United States was proceeding as the assignee of the Soviet Government and sought to collect under state law. The petitioner argued that the statute of limitations had run, and the United States asserted, among other defenses, that it was not bound by state statutes of limitations. We found that the circumstances of the case "admit[ted] of no appeal to such a policy." Id., at 141. Even if the United States had a right to be free from the statute of limitations, it was deprived of no right on those facts. "[F]or the proof demonstrate[d] that the United States never acquired a right free of a pre-existing infirmity, the running of limitations against its assignor, which public policy does not forbid." Id., at 142.
Here, although the Government acquired a right to subrogation to WBEC's claims upon payment of the taxes, the Government did not assert that right until it filed the federal judicial proceeding. As the California Supreme Court has held: " '[A] surety by payment does not become ipso facto subrogated to the rights of the creditor, but only acquires a right to such subrogation, and . . . before the substitution or equitable assignment can actually take place he must actively assert his equitable right thereto. It is not a substantive tangible right of such nature and character that it can be seized and held and enjoyed independently of a judicial proceeding.' " Offer v. Superior Court of San Francisco, 194 Cal. 114, 117, 228 P. 11, 12 (1924) (quoting 25 Ruling Case Law 1391 (1919)). Accord, 10 Jaeger, Williston on Contracts § 1265, at 848, and n. 9 (citing cases). Because the Government waited until after the state statute of limitations had
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