60 Ky. 91 | Ky. Ct. App. | 1860
delivered the opinion of the court :
Elizabeth Martin qualified as the administratrix of her husband, Hudson Martin, deceased, and gave George Johnson, the appellant, Joseph Crawford, and Irvine Price, as sureties in her bond as administratrix.
Hudson Martin left four children, viz : three daughters and one son. One of. the daughters' married Thomas R. Givens, and another one of them married Samuel A. Davis.
In a suit in chancery, in which the administratix and her sureties, and the four children, together with the husbands of the married daughters, were all parties, a decree was rendered against the administratrix and her sureties, in favor of Thomas R. Givens and wife for three hundred dollars, and in favor of Samuel A. Davis and wife for three hundred dollars, and also in favor of each of the other two children for the same amount, making, altogether, the sum of twelve hundred dollars.
Four executions having been issued on the aforesaid decree, for the sum of three hundred dollars each, and placed in the hands of the sheriff for collection, George Johnson, one of the sureties of the administratrix, brought this action, and alleged, in his petition, that the administratrix was insolvent; that Joseph Crawford, one of the sureties was a non-resident, and had no property in this State; that he was wholly ignorant, until after the decree was rendered, of the contract which Irvine Price, the other surety, had made with Givens and Davis ; that no credit had been allowed on account of the one thousand dollars which said Irvine Price had paid them, and he set up and relied upon that payment, and the instrument of writing which they executed, as exonerating him from the payment of said decree.
The execution of the instrument, and the payment of the money, were admitted. The legal effect of the writing wa the only question in 'the case. The court below decided that it did not entitle the plaintiff to any relief, and dismissed his petition. From that decision he has appealed to this court.
The writing relied upon does not purport to be a release, nor could the parties thereto have released the liability that had been incurred by the sureties of the administratrix. They
The sum of one thousand dollars was neither paid nor received as part of the estate to which the distributees were entitled. It was paid by Price as the consideration of the agreement by Givens and Davis, to indemnify him against his liability as surety aforesaid. The administratrix and her sureties were not therefore entitled to a credit for that payment.
Two questions arise on the instrument of writing which was executed by Givens and Davis. First, what liability does it impose upon them; and, in the second place, can Johnson, the other surety, derive any benefit from it in this action.
According to the literal import of the undertaking, Givens and Davis were to pay all sums of money that might be decreed against Price as surety for said administratrix, and were therefore bound to pay the whole amount of the decree, inasmuch as he was liable as surety for all of it. But it is manifest from the whole instrument, when all its provisions, and the object the parties had in view, are considered, that they were only bound to pay that part thereof for which be would be ultimately liable as one of the sureties. The payment of that part would have the effect to indemnify him, and that was all that they bound themselves to do. As the administratrix was insolvent, and one of the sureties was a non-resident, and beyond the jurisdiction of the court, the whole liability devolved by law on the other two sureties ; and the payment of one-half of the full amount of the decree was necessary for Price’s indemnity. The obligors in the bond of indemnity were, according to its stipulations, bound to pay one-half of the twelve hundred dollars decreed against the administratrix and her sureties, being just that part of the decree to which they were entitled, in right of their wives, and the payment of which was, by the terms of the decree, tó be made to them.
No question is made in this case as to the equitable right of the wives to the money in controversy, but as the case is presented the husbands have a right to collect it, and it has therefore been considered and treated as belonging to them.
Wherefore, the judgment is reversed, and cause remanded, that a judgment may be rendered, making the injunction perpetual to so much of the decree as is in favor of Givens and wife, and Davis and wife, and dissolving it as to the residue only.