Pegram v. Riley

• Decision Date: 26 November 1889
• Citation: 88 Ala. 399,6 So. 753
• Parties: PEGRAM v. RILEY ET AL.
• Court: Alabama Supreme Court

6 So. 753

88 Ala. 399

PEGRAM v. RILEY ET AL.

Supreme Court of Alabama

November 26, 1889

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Judge.

Bill by R. G. Pegram against Thomas J. Riley, and others to compel contribution. From a decree sustaining demurrers to the bill plaintiff appeals.

Overall & Bestor, for appellant.

R H. Clarke and Clarke & Webb, for appellees.

CLOPTON J.

Appellant the executor and domiciliary representative of the estate of John D. Ragland, having obtained, January 11, 1889, a decree for the sum of $8,246.64 against Fred Hall, the appointed administrator of the estate of the decedent in Alabama, filed a bill against the executors of the estate of William Cottrill, who was a surety on Hall's administration bond, to compel the payment of the decree. During the pendency of the suit, the parties entered into a compromise and settlement, on the following terms: Appellant released and discharged the executors and the estate of Cottrill from all liability, claim, and demand arising from his suretyship, in consideration of the payment of $4,125 and the costs of the suit, and also of an assignment of the claim to contribution from the estate of Thomas J. Riley, who was a co-surety on the bond. By the compromise and settlement, it was understood and agreed that the amount paid by Cottrill's executors should be a credit on the decree, in extinguishment of only one-half thereof, and should not in any way affect or impair any claim, right, or remedy which appellant had against the other obligors in the bond; the right to proceed against them being reserved. Riley, the co-surety, died in 1883, and in July, 1887, on final settlement of his estate, the property was distributed between his widow and son, who were his only legatees and devisees. The widow died thereafter, leaving a will, by which her portion of the estate of her husband was bequeathed and devised to the appellees. Appellant, as such executor, brings the present bill against them, to reach the property which they acquired and received under the successive wills of Riley and his widow. There are other sureties on the bond, but the bill avers that they are dead, and their estates insolvent. The principal obligor is also insolvent.

Counsel for appellant properly concede that the bill does not seek to enforce payment of the portion of the decree which was unsatisfied and unextinguished by the compromise and settlement. If such were its purpose, it could not be maintained, for the averments show the claim to be prima facie within the bar of the statute of non-claim; and there is no allegation of a presentation, as required by the statute. The object of the bill is to enforce contribution from the estate of Riley, to the extent of one-half of the amount paid by Cottrill's executors. Appellant only acquired by the assignment Cottrill's equity to contribution. A mere payment upon the common debt does not entitle a surety to contribution from a co-surety. Being an equity springing from the relation of the parties, and resting on the principle that between those who have voluntarily assumed a common burden equality is equity, it may be rebutted...