Dunlap v. Foster
7 Ala. 734
Ala.
1845
Check Treatment
ORMOND, J.

A surety does not lose his distinctive character, or forfeit the rights which spring from that relation, by a judgment being rendered against him, jointly with his principal, as was held by this Court, in the .case of Carpenter v. Devon, 6 Ala. Rep. 718.

Notwithstanding, therefore, a judgment was obtained against Lee, and his sureties by the Bank, the relation of principal and surety still existed between them, and they do not therefore stand in the relation of principal, to Foster. Are they co-sureties with him, for the principal debtor?

It is not necessary to create the relation of co-surety, that those standing in that relation, should have become bound for the principal debtor by the same instrument, or at the same time; if it is the same transaction, and they have a common interest, or a common burthen to bear; as was held in the case of Deering v. Winchelsea, argued in the Exchequer Chamber, 2 Bos & P. 270. The reason is, that the right to contribution is not founded on contract, but arises from equitable considerations, growing out of the relation of suretyship, where the sureties have not by contract, stipulated for the measure of the obligation, that shall exist between them, as to contribution. See the observations of Lord Eldon, Cooper v. Twineam, T. & Russ. 426.

The question then, here, is, are these parties sureties in the same transaction; it is only necessary to advert to the facts of *736the case, to see, that they are not. They are not only not sureties in the same transaction, having a common interest, and a common burthen, but their interests are, if not absolutely antagonist to each other, at least dissimilar. After the judgment was obtained, and the levy made on the property of the principal, the sureties had a direct interest that the property should be sold, for its discharge. This, the defendant in error prevented, by becoming bound for the delivery of the property to the sheriff on the day of sale, thereby causing its return to the principal, and thus enabling him, as the event has proved, to disappoint the expectations of the sureties. These two acts are clearly not the same transaction, but separate and distinct. Miller & Dunlap were sureties for the payment of the debt to the Bank; Foster was surety for the principal, that he would produce the property on the day of sale, to satisfy the execution; and his principal having failed, he cannot look to the sureties for the payment of the debt to the Bank, for contribution'.

From this, it results, that the Court erred in its judgment, which must therefore be reversed.