Cummings v. May

91 Ala. 233 | Ala. | 1890

McCLELLAN, J.

We find no error in the decree of the special chancellor in respect to May’s liability to contribute to the payment of the State’s judgment against Britton and seven of his eight sureties. Anderson being insolvent, prima facie, the share of each of the other sureties was one seventh of the sum remaining after the money realized from the principal and Anderson had been applied to it. This balance was paid by Cummings, Bonnard, Nabors, Prisoc, Collins and Grewin, the amount contributed by each having been fixed by agreement among themselves, upon the basis of the property owned by them respectively; and each, expressly or impliedly, discharged from all liability to the others, upon the payment of the sum so ascertained. The apportionment among these six sureties in this way resulted in the contribution of sums varying in amounts from $2,500, in the case of Cummings, to $250 j)aid by Prisoc; but, whether the respective sums were great or small — less or in excess of the aliquot share of each — all of these payments went together into a common fund for the satisfaction of the judgment, and not one of them was applied as a separate pajuneaX, pro tanto of the judgment. Those who paid more than their proportionate share of the common burden, accepted the smaller contributions of others, in full acquittance of the latter’s liability in the premises; and it can make no difference whether the amounts so accepted were greater or less than could have been made out of the parties on execution.

Though, in point of fact, Nabors and others who contributed less than their aliquot shares, and were in consequence discharged, may not have had any property amenable to process, Cummings and Kinnard have treated them as being able to respond, and upon that theory had them to pay certain sums, which went to complainants’ benefit in making up the fund which otherwise they would have had to pay in full; and they can not now be heard to say that these co-sureties were insolvent, and although we released them for a valuable consideration moving to us, in the shape of a valuable contribution toward raising a burden which practically rested on us alone, this contribution must be credited on the judgment, as if it had been coerced out of the principal, no account to be taken of our release, and these sureties, as between us and May, must be treated and considered as insolvent, and May forced to contribute to the balance, as if Nabors and the others had not been sureties at all. The chancellor correctly held that the principle, under which an insolvent surety is not considered in respect to contribution between the solvent co-sureties, had no application in this case except as to Anderson, and that the complainants, having accepted from Nabors and others, respectively, less than one-seventh of the whole debt, and released them from all further liability, were entitled to contribution from May precisely as if they had paid their full aliquot shares — the payment of part'and the release of the residue being the equivalent of payment in full.—Ex parte Gifford, 6 Vesey, 805; Fletcher v. Grover, 11 N. H. 368; Currier v. Baker, 51 N. H. 613.

With respect, however, to the claim for contribution which is based upon payments made to the county of Hale, the chancellor fell into error. May, in our opinion, was liable to complainants for one-seventh of the sum paid by complainants and the other sureties in compromise and settlement of the county’s claim against them. It is well settled, and not controverted here, that where a surety satisfies the full demand by paying less than the whole amount due, he may call on his co-sureties to reimburse him as to all he pays in excess of his aliquot part.—Stallworth v. Preslar, 34 Ala. 505; Pegram v. Riley, 88 Ala. 399; Gross v. Davis, 10 Amer. St. Rep. 635, notes. And where the demand is thus fully satisfied as against the sureties, though the principal debtor may still remain bound for the residue to the creditor, we do not doubt that the paying surety is entitled to contribution from those who have, not paid. It may be conceded, that if the surety who pays the claim disables himself to proceed against the principal for reimbursement, he thereby also disables himself to proceed against, co-sureties for contribution.—Fletcher v. Jackson, 23 Vt. 581; United States v. Simpson, 24 Amer. Dec. 331; Johnson v. Bank, 43 Amer. Dec. 480. And the chancellor, construing the contract of settlement between Hale county and complainants, Nabors, and others, to operate a release of Britton, the principal, from all liability to the sureties on account of the payment made by them, proceeded on this principle to deny their right to contribution from May. A very careful examination and consideration of' the contract leads us to a different conclusion. We construe it to mean that all the sureties, including May, as well as those who contributed, are discharged from further liability to the county, and while the county’s judgment against Britton is not assigned to the contributing sureties, and he is not released from liability thereon to the county, except to the extent of the payment by such sureties; yet, they are in no wise precluded to proceed against him, regardless of the judgment, in an action for money paid,, for the recovery of the $3,750 they have paid to the county for him; and upon payment by May of his one-seventh of this sum, he would succeed to their rights to the extent of his payment, and could recover the same from Britton. A decree should therefore go against May for one-seventh of $3,750, with interest from the time that sum was paid to the countv of Hale.

There is no reason disclosed in this record to disturb the conclusion of the special chancellor as to the date of Britton’s default, and the dependent priorities between the liens arising in favor of the State and county, on the one hand, and the mortgages executed by May, on the other.

For the error pointed out above, the,decree is reversed, and the cause remanded.