36 Ky. 137 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
Samuel D. Scott and Robert Q. Scott, having jointly bought from one Forman a tract of land, made a division of it in severalty between themselves, on the day of the contract of purchase, and each gave his separate bonds, for his portion of the consideration, according to their division, with the other and Alexander C. Scott as his sureties.
Afterwards, most of the purchase money having been paid, Forman conveyed to Samuel D. Scott a legal title to the whole, except about thirty two acres, of his allotted portion of the land; and S. D. Scott sold the whole thereof to one Liter, who sold a part, including the thirty two acres, to one Kleiser, who gave his bonds for the price thereof to S. D. Scott, in lieu of Liter’s liability. S. D. Scott having assigned those .bonds to different persons, both he and R. C. Scott died, intestate, leaving still unpaid about one thousand eight hundred dollars of the amount of the bonds given for S. D. Scott’s part of the land.
Afterwards, an amended bill was filed, proposing to make Alexander C. Scott a co-complainant; and thereupon an entry was made on the order book, agreeing that he should be admitted to be a co-complainant, just as if he had been so in form in ■ the original bill. And another amendment having been filed, alleging that the administrators of R. C. Scott had, since the filing of the original bill, paid one moiety, and that A. O. Scott had paid the other moiety of the debt for which said Scotts were sureties to Forman for S. D. Scott — Forman and Liter and Kleiser answered-^ — the first admitting, in substance, the allegations of the bill and amended bills; and the two latter admitting but little, and insisting that R. C. Scott had urged Liter to buy the land from S. D. Scott, and therefore should be estopped to assert any equitable lien thereon, by substitution or otherwise.
The Circuit Court having decreed the subjection of the thirty two acres to sale, for the indemnity of th'e complainants — this writ of error is prosecuted to reverse that decree.
The first objection which has been urged against the decree, is that A. C. Scott and the representatives of R. C. Scott cannot maintain a joint suit in chancery.
But this we consider untenable; because, as between ■themselves and S. D. Scott, both R. C. Scott and A. C. Scott were his sureties; and, being co-sureties, they have a right to maintain a joint bill for enforcing their equities arising from that relation.
The plaintiffs next insist that Forman had no equitable lien, because, as they argue, he had waived it by
The objection most earnestly urged, however, is that the equitable right to substitution was waived by the conduct of R. C. Scott, in urging Liter to buy the land, without disclosing to him an intention to assert, in any event, any sort of claim to it, resulting from facts or rights then existing, and without notifying him of even the existence of any such facts or contingent claim.
But if, upon any existing or hypothetical state of case, R. C. Scott’s conduct should be deemed a waiver of his right to be substituted to Forman's equity, which, in the hands of Forman, remained nevertheless unaffected, or should be considered as amounting to an equitable estoppel against the enforcement of that-lien for his own, benefit, and not for that of Forman, still A. C. Scott’s-equity would remain unaffected, and the effect would be, only that R. C. Scott could not enforce the lien to-the prejudice of Liter, or of any person holding under him." And, as Kleiser holds only an equitable interest in the thirty two acres, and has not paid the consideration, he cannot be prejudiced by an application of the money to the extinguishment of Forman’s lien. As,.
But, as the assignees of those bonds will be evidently affected by the enforcement of Forman’s equity, they should be made parties, so that they may be able to contest a claim which may essentially affect their interests. And therefore the decree is erroneous, because they were not made parties.
S. D. Scott’s representatives are also necessary parties; because, possibly, they might be able to show that he or themselves had paid the debt, directly or indirectly, to Forman, or that A. C. Scott and R. C. Scott had paid nothing, or not the whole amount; and if his assignees should be prejudiced by a decree, his estate would be responsible.
There is no satisfactory proof of the insolvency of his estate; and his representatives have not been made parties.
Wherefore, the decree must be reversed, and the cause remanded for such further proceedings and deeree as shall be proper.