Bigby v. Douglas

• Decision Date: 02 August 1905
• Citation: 51 S.E. 606,123 Ga. 635
• Parties: BIGBY v. DOUGLAS et al.
• Court: Georgia Supreme Court

51 S.E. 606

123 Ga. 635

BIGBY v. DOUGLAS et al.

Supreme Court of Georgia

August 2, 1905

Syllabus by the Court.

At common law, where one surety paid off the principal's debt, or more than his share, he could compel contribution from his co-sureties. Civ. Code 1895, § 2992, is but a codification of this principle of the common law, and is not of statutory origin.

The surety entitled to contribution may sue his co-sureties upon the written evidence of indebtedness (in which case the period of limitation would be that applicable to instruments of its class) or upon the implied contract raised by law in favor of one surety against his co-sureties for contribution (in which instance the period of limitation would be that of an implied assumpsit).

Civ Code 1895, § 3766, which provides that "all suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law shall be brought within twenty years after the right of action accrues," is applicable to cases where the liability thus created is in favor of an individual, or a class to which he belongs, as distinguished from one arising under the general law in favor of the public at large.

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by Elizabeth Kate Bigby against Hamilton Douglas and others. Judgment for defendants, and plaintiff brings error. Affirmed.

A. H Cox and Anderson, Anderson & Thomas, for plaintiff in error.

J. H. Martin, Hatcher & Carson, and Slaton & Phillips, for defendants in error.

EVANS, J. (after stating the facts).

It is well settled law in this state that an accommodation indorser is to be considered as a mere surety. Civ. Code 1895, § 2969. The plaintiff's petition presents a case of the payment by one accommodation indorser of the principal debt to the creditor, and a claim for contribution from the other indorsers. It is insisted by the plaintiff in error that the cause of action set forth in the petition is predicated neither upon the subrogation of her testator to the rights of the payee of the note nor upon any implied contract on the part of the defendants to make contribution, but upon their statutory liability so to do arising under Civ. Code 1895, § 2992, which declares that: "Where several are sureties for the same principal, for the same sum of money, either by one or by distinct instruments, and one pays more than an equal share of the sum, he may compel contribution from his co-sureties. If one of the co-sureties be insolvent, the deficiency in his share must be borne equally by the solvent sureties." The payment of the joint indebtedness by one of several sureties entitles him to sue his co-sureties upon the written evidence of indebtedness (in which case the period of limitation would be that applicable to instruments of its class) or to sue upon the implied contract raised by law in favor of one surety against his co-sureties for contribution (in which instance the period of limitation would be that of an implied assumpsit). Hull v Myers, 90 Ga. 674, 16 S.E. 653. Admittedly the plaintiff is barred by lapse of time from pursuing either of these remedies. But it is contended that the right of a surety to compel contribution from his co-sureties is a statutory right, and therefore, under Civ. Code 1895, § 3766, the cause of action is not barred. That section provides that "all suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action accrues." The evident purpose of this section is to fix a period of limitation for special cases not provided for by the general statute of limitations or otherwise, where rights accruing to "individuals" are sought to be enforced. A statutory liability is one that depends for its existence upon the enactment of a statute, and not upon the contract of the parties. Pare v. Mahone, 32 Ga. 253. The right of one surety to compel contribution from a co-surety, recognized and declared in Civ. Code 1895, § 2992, is not of statutory origin. The section of the Code just cited is a mere codification of the common law. As was pointed out in Lumpkin v. Mills, 4 Ga. 343, under the common law, as understood and applied prior to the time of the Revolution, where a surety paid off a debt, he was subrogated to all the rights of the creditor upon the evidence of indebtedness, and was entitled to an assignment of the security to enable him to obtain satisfaction for what he had paid beyond his own just...