61 Ala. 440 | Ala. | 1878
These are cross-appeals from a decree rendered by the court of chancery, in a cause wherein the appellant, Owen, was complainant in the original bill, and defendant in a cross-bill filed by the appellee, Mc-Gehee.
The purpose of the original bill is to compel contribution from McGehee, for the relief of Owen, who has discharged more of a common obligation than he was bound in equity and conscience to discharge, theréby benefitting McGehee. The facts as shown by the pleadings and proof are, that in December, 1859, the personal representatives of Haley Hutchinson, under an order of the court of probate of Lowndes county, exposed to public sale, a large tract of land, containing more than fourteen hundred acres. Owen, McGehee, Watts, and Harrison, each desired to purchase parts of the lands, of unequal quantities, neither desiring to purchase the entire tract. On the day of, and at the place of sale, it was agreed that Owen should in his own name bid off the entire tract, and the others would join him in the note for the purchase-money. Each one was to take the part and quantity of the lands he wished, and was to pay a corresponding part
Watts and Harrison each failed to pay any part of the purchase-money of the lands, and in 1867, surrendered to Owen the parts of the lands they had taken, whereby as between himself and McGehee, Owen became bound for their parts of the purchase-money. The questions at issue, between the parties, are, first, whether Owen shall account for Watts’ part of the lands, at the increased price he agreed to pay, or only at the same rate per acre at which the whole lands were originally purchased ; and, second, whether Mc-Gehee can claim the whole amount due on the original note, when he obtained it from Slater; or only the amount he paid in money, and the actual value of the railroad stock ; third, whether the note for fifteen hundred dollars given by him to-Slater, which is unpaid, shall as between Owen and himself, be computed a payment.
The chancellor directed a reference to the register to state-an account between the parties, on each hypothesis, and a report was made to which each party filed exceptions. Pending these exceptions, the parties agreed that the register should report, and he did report, that assuming McGehee was entitled to a credit for the balance due on the original
The chancellor was of opinion, that under all the facts of the case, Owen had too long delayed his claim for contribution, and the right to participate in the benefits of the transaction by which McGehee obtained the original note from Slater, and rendered a decree dismissing the original and the cross-bill. The original bill was filed on November 17th, 1875. The litigation with the heirs of Hutchinson was not then finally determined. Each party has appealed and assigned errors.
There is no evidence that there was any inequality in the values of the several parcels of the tract of land, further than may arise from the difference in quantity. Assuming for the present that there was no agreement between the parties as to the amount of the purchase-money each should pay, the implication of the law would be, that each should pay such a portion, as his part of the land bore to the price -of the whole tract; or, assuming there was an agreement the respective parcels should be valued, and each should pay the valuation of his part; or that there was an express agreement that each should pay of the purchase-money according to the quantity of his parcel, will not vary the relations subsisting between the parties. A joint note having been given to the vendors for the purchase-money, as to them, all the makers were jointly and severally bound for its entire amount; all were principal debtors. But as between the makers, each was a principal for the share of the puirchase-money he was bound to pay, and a surety for the remainder. — Brandt on Suretyship, § 250; Deitzler v. Michler, 37 Penn. State, 82; Stokes v. Hodges, 11 Rich. Eq. 135; Hall v. Hall, 34 Ind. 314; Crafts v. Mott, 4 Coms. 603; Chipman v. Morrill, 20 Cal. 130; Goodall v. Wentworth, 20 Maine, 322; Fletcher v. Grover, 11 N. H. 368.
Standing in this relation to each other, there can be no doubt, if McGehee or Owen, either, paid more than his share of the purchase-money, more than as a principal to the other
What may have been the orignal agreement between the-parties, as to the amount of the purchase-money each should pay for the parcel of land taken by him, it is not material to inquire. If it was variant from the subsequent agreements, it was competent for them to alter or modify it subsequently. The agreement by which Owen, McGehee and Harrison submitted to appraisement their respective parcels of the land, with the view of determining the proportion of the purchase-money each should pay, and the award of the appraisers, that the lands of each were of the same value according to the-quantity, and each should pay off the purchase-money on that basis, fixed the amount each was bound as principal to pay. When the award of the appraisers is read and construed in connection with the agreement, this is its only fair and legitimate meaning; and if it were not, in the absence of all evidence that there was any inequality of value in the several parcels, and of all evidence of an express agreement that the parties should pay in any other proportion, there could be no equality of burthen between them, on any other basis.
The agreement by Watts to pay a greater price per acre, for his parcel of the lands, than that to be paid for the entire tract, was not perhaps offensive to the statute of frauds, and
It is undisputed, that prior to the arrangement by which MeGehee acquired the note from Slater, Owens’ payments were largely in excess of his proportion of the common debt, including as parts of his liability the proportions of Watts and Harrison for which he became liable by taking their several parcels of the land. It is well established, that a surety can not speculate on the common liability of himself and his co-sureties. Whatever of advantages he may acquire in his dealings with the common creditor, enure like securities for the common debt, to the common benefit. It is as unjust, to compel a surety to bear more than his just proportion of the actual, necessary loss, as it is to compel
McGehee is not entitled to claim of Owen tbAwhole amount of the balance due on the note, when he acquired it from Slater, but simply the amount he really paid. The dealings between him and Slater, was on the footing that the ultimate collection of the claim was doubtful, or could be indefinitely procrastinated, if there was a resort to legal remedies. The railroad stock was not employed in' the payment as of its nominal value, but it was accepted as part of the compromise, into which Slater and McGehee entered. This being true, McGehee can not claim that he shall be allowed more for the stock than its real value. — Brandt on Suretyship, § 250. The note of McGehee, though he has not paid it, operated and was received as a payment of the common debt, and entitles him to contribution from Owen, as if it had been money. — Brandt on Suretyship, § 249; Pinkston v. Taliaferro, 9 Ala. 547.
The delay of Owen in asserting his claim for contribution is fully accounted for by the litigation in which he and Mc-Gehee were involved in reference to the land, if there was a necessity for accounting for it. Contribution may Te refused a surety when his conduct has been such as to work injury or injustice to the principal, or to his co-sureties. But mere passiveness in asserting his rights, unless the lapse of time works a bar; a mere want of diligence, can not prejudice him.
In this view of the rights of the parties, they have agreed the balance due Owen from McGehee on the seventh of May, 1877, was $4,215 72-100. The legal title to the lands resides in Owen, and the debt is a lien chargeable on them.
The decree of the chancellor in 576 dismissing the cross-bill must be affirmed. The decree in 575 must be reversed, and the proper decree will be here rendered.