The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-02-05

Il. NJ. APPERsON, ct nl.,
VS..
G. G. WILBOURN, ct al.
Appeal from the Chancery Court Of Pan
ola county, Hon. j. b. Morgan, Chancellor
The opinion contains statement of the
case.
L. w. White, for appellants.
Hall e. Boothe for appellces.
CAMPBELL, j,
Held
Both sureties on bond died. The estate
OF one was solvent, that of the other in
solvent. The creditor proved the full
amount of the liability under the bond rs !,
claim against the insOlyent estate, and re-
ceived on IL an amount less than one-lalf Of
the claim, and the remainder of it, being
more than half. was paid by the estate OF
the solvent surety. The other creditors OF
the insolvent estate, uniting with its adj
ministratOr, exhibited thiAJill against the
solvent estate, to compel il TO pay back one
half of the sum paid by the insolyent estate
on the claim under the bond. The bill was
dismissed on demurrer, and the question
Il, whether the administrator of the insOly-
ent estate can, for the benefit of its cred
itOrs, recover of the solvent estate the eX-
cess over what would have been the sum
paid by the insOlvent estate. If the claim by
virtue OF the bond had been proved tor
half of its amount instead of the whole
of iti
Whether surety, who has paid the whole
debt is entitled to Il dividend for the whole
against the estate Of an insOlvent cO-surety,
or only for so much Ms exceeds his just pro-
portion, has been Il disputed question, and
has been answered differently.
In Hess Estate, 10 T.. +. Smith, 272. II
a. huf mel atr if,ht for
the whole, because the creditor could, and
he was substituted to his right.
In MaXwelPs Creditors vs.. IIerOn's Trus-
tees, Ross Leading Cases, 90, IL was held
by the House of Lords that he was en-
titled to ''rank" for only half.
In this case the solvent surety did not
pay, but the creditor, in the exercise of his
undoubted right, proved his whole claim
against the insolyent estate, and realized
from 1t less than one-half of it; and the
precise question Is, whether the insolyent
estate is entitled as against the estate OF
the co-surity, to be relieved from the bur-
den OF the one-half Ofthc liability Equal
ity of burden was the obligation as be-
tween the two sureties. One who paid
less than the half which his relation to his
cO-surety made it his duty to pay, would
not have right to call on his cO-surity for
contribution. If the surety. whose estate
Is InsOlyent, and in behalf of the creditors
OF which this suit is brought, had lived,
and paid less than his half Of the debt, he
would not have had right of action
against the other surety. Certainly his adj
ministrator cannot have any greater claim
than the interstate would have had, and we
approve the view expressed by the Supreme
Court of New Hampshire in the ease Of
Fistcher as. GrOcer, IL n. ii. 1858, rs fol-
lows: "We however are not aware Of
any principal upon which It can reason
ably be held, that the administrators OF
deceased persons, or their creditors, can
derive greater or other benefits from their
contracts with, or the equitable relations
in which they may have stood while living
TO other persons, than the deceased would
be entitled to, if still living"
We are quite sure that, If the solvent
estate had paid the debt, it would have
been entitled to prove only one-half Of it
against the other, and to receive diyi-
dend on the half; but as the creditor got
less than half OF the claims from the insOl-
vent estate, no right exists In IL to visit on
the estate OF the other surety the loss 1t
would have had to bear, If the creditor had
resorted to IL IN the first instance for the
whole demand.
1t is fortunate that through the action Of
the creditor Justice was effected as far Us
possible, by obtaining from the insolvent
estate a dividend on the whole demand.
no just cause of complaint because of this.
Their debtor, at the time OF his death,
owed the whole debt as to the creditor,
and the half Of IL as TO his co-surety. Had
he lived, so much of his estate as was nec-
essary to pay half of the debt would have
been required for 1t. That would have
subtracted from his ability to meet their
demands against him. They have not
been injured by the dividend on the whole.
The other surety's estate has borne its full
share Of the joint burden, and more. The
insolyent estate has not met its full respon-
but because Of the requirement Of
. pro rata distribution of assets among
creditors, IL is relieved from paying more.
To allow the recovery sought by this
suit would be to impose on the solvent
surety more than his just proportion Of
the common obligation, for the benefit Of
creditors OF the insolvent surity, who, be-
cause Of insuficiency of estate, was not
able TO meet its just proportion Of the
debt. The misfortunes of the creditors of
the insolvcnt must be borne by them
selves, and not visited ON the solvent party
whose estate has contributed more than as
between the two sureties, it was under
obligation TO pay.
Decree affirmed.
Chalmers g. j. took no part in this case.