256 N.W. 185 | Minn. | 1934
Lead Opinion
The facts need not be gone into further, for the single question of law is presented whether in such case there can be contribution in favor of the surety on the special sale bond and against those on the general bond of the administrator. Under Frederickson v. American Surety Co.
Plaintiff has paid nothing more than the special and limited liability which it underwrote. To say that the sales bondsmen and the general bondsmen are cosureties does not end the inquiry, if it be true, as we think it is, that as between themselves the sales bondsmen are primarily and the general bondsmen secondarily liable for a default in accounting for the proceeds of real estate sold under order of license.
There is a common liability of course. But the fact remains that plaintiff has paid no more than his just share thereof. The general bond is given first and its sum fixed on the basis of the probable value of the personal estate. The sale bond comes later and is a jurisdictional prerequisite to an order of license to sell and a sale thereunder. It is specially conditioned for the representative's discharge of his duties under the order of license and for his accounting for moneys received on account thereof. Hence when he pays that liability and nothing more, he is answering for only his own just and proper share of the default, which is the whole thereof. His equity is inferior to that of the general bondsmen. Without equality of equity, there can be no contribution. 6 R.C.L. 1036; 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 1921.
Judgment reversed.
Dissenting Opinion
As I read the cases of Frederickson v. American Surety Co.