5 665 ment often made, that joint obligations are treated in equity as joint and several. But this statement is inaccurate, for equity never charged the estate of the deceased joint obligor unless either because of fraud, ignorance, or mistake, the parties failed to create a joint and several liability when such was their intention; or where the deceased joint obligor shared in the consideration or benefit for which the obligation was given." Where the deceased obligor is merely a surety, his death destroys all remedy of the obligee against his estate in equity as well as at law. And even where the deceased joint obligor shared in the consideration his estate cannot be held until it is shown that the creditor has no effective redress against the surviving obligor. In England unless the joint obligation is that of a partnership the creditor has no relief against the estate of a deceased joint obligor even though he was not a surety, and the claim cannot be collected from the survivor. By modern statutes it is sometimes broadly provided that all contracts which by the common law are joint shall be construed as joint and several.10 § 345. Contribution. 8 In re Burdick, 79 N. Y. Misc. 167, 140 N. Y. S. 582. Though a creditor may exact full payment of the whole Ins. Co., 34 App. D. C. 460; Hogan v. Sullivan, 79 Vt. 36, 64 Atl. 234; Brownfield v. Holland, 63 Wash. 86, 114 Pac. 890. But such a statute does not prevent the surviving obligors also from being jointly liable for the whole debt. Lee v. Blodget, 214 Mass. 374, 102 N. E. 67. 'Pickersgill v. Lahens, 15 Wall. 140, 144, 21 L. Ed. 119. Ibid. See also Cox v. Maddux, 72 Ind. 206; Waters v. Riley, 2 H. & G. 305; Barnes v. Brown, 130 N. Y. 372; Hengst's App., 24 Pa. 413. 7 Towers v. Moor, 2 Vern. 98; Simpson v. Vaughan, 2 Atk. 31; Pickersgill v. Lahens, 15 Wall. 140, 21 L. Ed. 119; Olmsted v. Olmsted, 38 Conn. 309, Davis v. Van Buren, 72 N. Y. 587; Richardson v. Draper, 87 N. Y. 337; Douglass v. Ferris, 138 N. Y. 192, 207, 33 N. E. 1041, 34 Am. St. Rep. 435. Sumner v. Powell, 2 Mer. 30; Clarke v. Bickers, 14 Sim. 639; Wilmer v. Currey, 2 De G. & Sm. 347; Jones v. Beach, 2 De G. M. & G. 886, 889; Other v. Iveson, 3 Drew. 177, 182; Beresford v. Browning, L. R. 20 Eq. 564, 569. See also Richardson v. Horton, 6 Beav. 185. 10 Bank of Topeka v. Eaton, 95 Fed. 355 (Mass. decision on Kansas Statute); Gummer v. Mairs, 140 Cal. 535, 74 Pac. 26 (if all the obligors receive some benefit from the consideration); Powell v. Kettelle, 6 Ill. 491; Hudelson v. Armstrong, 70 Ind. 99; Rose v. Williams, 5 Kans. 483; Mays v. Cockrum, 57 Tex. 352; Bergstrom v. State, 58 Tex. 92; Donnerberg v. Oppenheimer, 15 Wash. 290, 46 Pac. 254. debt, by levy of execution or otherwise, from one only of those severally or jointly, or jointly and severally, liable to him, and cannot be compelled to confine his resort to each to that amount which as between one another each debtor ought to pay, an obligor who is compelled by the creditor to pay in excess of the share, proper as between himself and his co-debtors, is entitled to contribution or indemnification from the other obligors according to his contract or relation with them. The obligors before entering into the obligation may have made a special contract with one another as to the shares in which the liability should ultimately be borne by them. If they made no such contract it will be inferred that their shares are in proportion to their interest in the matter. Accordingly if the transaction was wholly for the benefit of one of the obligors and the others were sureties, the former should discharge the whole debt, and if any of the latter have been forced to pay anything upon the obligation it can be recovered by him from the principal debtor. As between obligors who are equally interested or equally without interest the duty to bear the burden is equal, and contribution will be enforced in favor of one who has paid more than his proportion against others who have paid less. 12 But in the case of a partner who has paid personally a partnership liability, contribution will not be enforced against his co-partners, since on settlement of the whole partnership the balance might be against the partner who has made the payment.13 If a debtor jointly liable with 11 See for instances of such contracts, Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; Crane v. Bayley, 126 Mich. 323, 85 N. W. 874; Armitage v. Pulver, 37 N. Y. 494. 12 Marsack v. Webber, 6 H. & N. 1; Lowe v. Dixon, 16 Q. B. D. 455; Comstock v. Potter, 191 Mich. 629, 158 N. W. 102; Allen v. Garner, 45 Utah, 39, 143 Pac. 228; In re Koch's Estate, 148 Wis. 548, 134 N. W. 663. See also cases cited in this section, passim, and infra, §§ 1277 et seq. As to right of subrogation see infra, 1271. 13 Brown v. Tapscott, 6 M. & W. 119; Sedgwick v. Daniell, 2 H. & N. 319; Pollard v. Stanton, 5 Ala. 451; DeJarnette v. McQueen, 31 Ala. 230, 68 Am. Dec. 164; Ross v. Cornell, 45 Cal. 133; Price v. Drew, 18 Fla. 670; Crossley v. Taylor, 83 Ind. 337; Lawrence v. Clark, 9 Dana, 257, 35 Am. Dec. 133; Phillips v. Blatchford, 137 Mass. 510; Glynn v. Phetteplace, 26 Mich. 383; Cockrell v. Thompson, 85 Mo. 510; Younglove v. Liebhardt, 13 Neb. 557, 14 N. W. 526; Harris v. Harris, 39 N. H. 45; Booth v. Farmers' &c. Bank, 74 N. Y. 228; Fulton's Appeal, 95 Pa. St. 323; Merriwether v. Hardeman, others dies, his estate remains liable to contribute what is equitably due to his co-debtors who discharge the obligation, in view of the original agreement of the debtors with one another, or of their respective interests.14 It has been frequently laid down that no right to contribution in favor of a joint debtor exists until actual payment by him of more than the share of the whole debt which, as between himself and those from whom he seeks contribution, he ought to pay; 15 but where judgment has been rendered against a co-debtor for more than his share it seems that he may by an equitable proceeding in which the creditor is made a party have the other co-debtors compelled to pay their proper shares of the judgment. 16 The right of two or more joint debtors to recover for an excessive amount paid by them is a joint right which they can enforce against a co-debtor in an action in which those who paid are all joined as plaintiffs, provided payment was made by them jointly; 17 but for payments made severally by joint debtors, they must sue severally for contribution. 18 The obligation of each joint debtor who has not paid his share to contribute to those who have paid more than their share is a several obligation; 19 but resort may be had to a court of equity where the parties are numerous or the facts are complicated, and all persons from whom or to whom contribution is due 51 Tex. 436; Kendrick v. Tarbell, 27 Vt. 512; Tomlinson v. Nelson, 49 Wis. 679, 6 N. W. 366. 14 Prior v. Hembrow, 8 M. & W. 873; Ashby v. Ashby, 7 B. & C. 444, 449, 451; Batard v. Hawes, 2 E. & B. 287, 298. 15 Ex parte Snowdon, 17 Ch. D. 44; Gardner v. Brooke, [1897] 2 Ir. Rep. 6; Washington v. Norwood, 128 Ala. 383, 30 So. 405; Cornett v. Holcomb, 23 Ky. Law Rep. 34, 62 So. 477; Backus v. Coyne, 45 Mich. 584, 8 N. W. 694; Yore v. Yore, 240 Mo. 451, 144 S. W. 847; Gourdin v. Trenholm, 25 S. C. 362. But giving negotiable paper by one debtor if accepted by the creditor as absolute payment gives a right to contribution. Bayne v. Greiner's Est., 118 Minn. 350, 136 N. W. 1041, and see infra, §§ 1277 et seq. 16 Wolmershausén v. Gullick, [1893] 2 Ch. 514. See infra, § 1275. 17 Dussol v. Bruguiere, 50 Cal. 456; Clapp v. Rice, 15 Gray, 557, 77 Am. Dec. 387; Weeks v. Parsons, 176 Mass. 570, 58 N. E. 157; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98. 18 Kelby v. Steel, 5 Esp. 194; Graham v. Robertson, 2 T. R. 282; Birkley v. Presgrave, 1 East, 220, 226; Lombard v. Cobb, 14 Me. 222; Fletcher v. Grover, 11 N. H. 368, 35 Am. Dec. 497; Prescott v. Newell, 39 Vt. 82. 19 Cowell v. Edwards, 2 B. & P. 268; Powell v. Matthis, 4 Ired. L. 83, 40 Am. Dec. 427; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98. may be joined as defendants. 20 A joint debtor who has paid more than his share is not generally held entitled at law to enlarge the liability of some of the remaining joint debtors because others are insolvent; 21 but in equity the insolvent debtors may be disregarded in making the calculation.22 So parties bound to contribute who are not within the jurisdiction will not be regarded by a court of equity in the calculation; 23 and in some jurisdictions the equitable rule has been applied at law. 24 The subject of contribution between cosureties is further considered in a later chapter. 25 It may be added finally to avoid misapprehension, that no right of contribution exists between joint tort feasors who are in pari delicto.26 § 346. Effect of a new promise or part payment by a joint or joint and several debtor on the statute of limitations. Lord Mansfield held in an early case that a "payment by one joint debtor is payment for all, the one acting, virtually, as agent for the rest; and, in the same manner, an admission by one is an admission by all; and the law raises the promise to pay when the debt is admitted to be due. "27 20 New England Trust Co. v. New York Belting Co., 166 Mass. 42, 43 N. E. 928; Cuyler v. Ensworth, 6 Paige, 32. 21 Browne v. Lee, 6 B. & C. 689; Cowell v. Edwards, 2 B. & P. 268; Batard v. Hawes, 2 E. & B. 287; Moore v. Bruner, 31 Ill. App. 400; Chaffee v. Jones, 19 Pick. 260, 265; Powell v. Matthis, 4 Ired. L. 83, 40 Am. Dec. 427; Gross v. Davis, 87 Tenn. 226, 230, 11 S. W. 92. 22 Cowell v. Edwards, 2 B. & P. 268; Hitchman v. Stewart, 3 Drew, 271; Ramskill v. Edwards, 31 Ch. D. 100; Burroughs v. Lott, 19 Cal. 125; Security Ins. Co. v. St. Paul &c. Ins. Co., 50 Conn. 233; Young v. Lyons, 8 Gill, 162, 166; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Twichell v. Askew (Tex. Civ. App.), 141 S. W. 1072; Preston v. Preston, 4 Gratt. 88, 47 Am. Dec. 717; Cummings v. May, 91 Ala. 233, 8 So. 790. See also Young v. Clark, 2 Ala. 264. 23 Security Ins. Co. v. St. Paul &c. Ins. Co., 50 Conn. 233; Whitman v. Porter, 107 Mass. 522; Boardman v. Paige, 11 N. H. 431; McKenna v. George, 2 Rich. Eq. 15. 24 Michael v. Allbright, 126 Ind. 172, 25 N. E. 902; Boardman v. Paige, 11 N. H. 431; Mills v. Hyde, 19 Vt. 59, 46 Am. Dec. 177; Liddell v. Wisnell, 59 Vt. 365, 8 Atl. 680. In England since the Judicature Act, 36 & 37 Vict., c. 66, s. 25, the equity rule prevails in all cases. Lowe v. Dixon, 16 Q. B. D. 455. And in States in this country where procedure at law and that in equity are assimilated, the same result may be expected. 25 See infra, §§ 1277 et seq. 27 Whitcomb v. Whiting, 2 Doug. There is nothing in the inherent nature of joint indebtedness which should warrant the conclusion that one joint debtor may by a new promise bind his co-obligors The question should, on principle, depend upon the authority in fact of the promisor to act as agent for his co-obligors. In deciding such a question of fact it may be a highly material circumstance that the joint obligors are partners, and other circumstances from which an inference of actual or apparent authority may be drawn will be similarly important. If, however, Lord Mansfield's ruling is adopted to its full extent, all these questions become immaterial. In every case the payment or new promise of one joint, or joint and several obligor will have the same effect as if jointly made by all. This was the law in England 28 until changed by statute, 29 by virtue of which the right of one joint debtor to bind another by a new promise or part payment is dependent upon authority in fact.30 In America the tendency has been strongly away from the early law laid down by Lord Mansfield. In a very few jurisdictions the old rule may perhaps prevail. Generally, however, after a debt is already completely barred by the statute, 652. This ruling of Lord Mansfield was contrary to that in an early case. Bland v. Haselrig, 2 Vent. 151. 28 Wood v. Braddick, 1 Taunt. 104 (an acknowledgment by one partner after dissolution); Burleigh v. Stott, 8 B. & C. 36; Pease v. Hirst, 10 B. & C. 122; Dowling v. Ford, 11 M. & W. 329; Fordham v. Wallis, 10 Hare, 217. 29 The Statute of Frauds Amendment Act (1828), § 1, provided that no written acknowledgment or promise by one joint debtor should bind the others, and the Mercantile Law Amendment Act (1856), § 14 provided that no payment of principal or interest by one co-debtor should bind another. 30 Watson v. Woodman, L. R. 20 Eq. 721; In re Tucker, [1894] 3 Ch. 429. 31 Bound v. Lathrop, 4 Conn. 336, 10 Am. Dec. 147 (cf. later Connecticut decisions cited in subsequent notes); 31 Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42; Casebolt v. Ackerman, 46 N. J. L. 169; Turner v. Ross, 1 R. I. 88. In the three decisions last cited the debt was not barred at the time of the new promise, but the court does not seem to rely on this distinction. (Cf. with the last decision Woonsocket Inst. v. Ballou, 16 R. I. 351, 16 Atl. 144.) Lord Mansfield's rule formerly prevailed in Maine and Massachusetts, North Carolina and Vermont, White v. Hale, 3 Pick. 291, 15 Am. Dec. 209; Colburn v. Averill, 30 Me. 310; Wellman v. Southard, 30 Me. 425; Cady v. Shepherd, 11 Pick. 400, 22 Am. Dec. 379; Vinal v. Burrill, 16 Pick. 401; Ilsley v. Jewett, 2 Metc. 168; McIntire v. Oliver, 2 Hawks, 209, 11 Am. Dec. 760; Wheelock v. Doolittle, 18 Vt. 440, 46 Am. Dec. 163; Noyes v. Cushman, 25 Vt. 390, but in these States has been changed by statute. |