285 Mass. 450 | Mass. | 1934
This action was presented to the District Court upon a case stated. The plaintiff and the defendant, owning certain real estate as tenants in common, on May
The right of contribution, though often enforced among joint sureties, is by no means limited to them. It exists as well in the case of joint, or joint and several, debtors who are principals and not sureties (Chandler v. Brainard, 14 Pick. 285; Packard v. Nye, 2 Met. 47; Ray v. Powers, 134 Mass. 22; Hill v. Fuller, 188 Mass. 195; Ratte v. Ratte, 260 Mass. 165; Odiorne v. Moulton, 64 N. H. 211; Licht v. Klipp, 213 Iowa, 1071; Lorimer v. Julius Knack Coal Co. 246 Mich. 214; 64 Am. L. R. 210), if their obligations are equal in kind and degree. Stone v. Fenno, 6 Allen, 579. It arises when, and not before, one debtor pays the common debt. Thayer v. Daniels, 110 Mass. 345. Spelman v. Talbot, 123 Mass. 489. Ratte v. Ratte, 260 Mass. 165, 167. Waters v. Waters, 110 Conn. 342. It may be modified by contract (Blake v. Cole, 22 Pick. 97; Mansfield v. Edwards, 136 Mass. 15; Tait v. Downey, 267 Mass. 422, 430; 64 Am. L. R. 213, 221; 65 Am. L. R. 822), but it is based, not on contract, but on the
In the present case, since the debt was a valid common burden in its origin (Connor v. Craig, 226 Mass. 255, 257, 258), the fact that one debtor has acquired a personal defence by the running of the statute of limitations against an action by the creditor, does not absolve him from his duty to contribute which arises upon the payment of the debt by the other debtor who has no such defence. Wood v. Leland, 1 Met. 387, 388. Goldthwait v. Day, 149 Mass. 185, 188. Boardman v. Paige, 11 N. H. 431. Young v. Burnett, 81 N. H. 163. Hard v. Mingle, 141 App. Div. (N. Y.) 170, affirmed 206 N. Y. 179. Frew v. Scoular, 101 Neb. 131; L. R. A. 1917 F, 1065. See also Thayer v. Daniels, 110 Mass. 345; Seabury v. Sibley, 183 Mass. 105, 107. There is nothing inconsistent with this in Spelman v. Talbot, 123 Mass. 489.
Order of judgment for the plaintiff affirmed.