Robertson v. Trigg's Adm'r
| Citation | 73 Va. 76 |
| Court | Supreme Court of Virginia |
| Decision Date | 31 July 1879 |
| Parties | ROBERTSON v. TRIGG'S adm'r & als. |
1. Two of the sureties of a United States collector, who has made default, and died insolvent, are entitled to be subrogated to the right of priority of the United States, in the payment of the debt, when they have paid it, as against the estate of another surety who had died before the insolvency of the collector.
2. In such case there having been six sureties to the bond, two of whom were insolvent at the time of the collector's death and continued to be so until their death, the two sureties who paid the debt are entitled to recover from the estate of the deceased surety one-fourth of what they have paid.
3. The principles of equity in relation to subrogation, are not affected by the U. S. statute, 1 Brightley's Dig. of Laws, 382, § 266, which provides substitution for the surety against the estate of the principal, where the surety pays the debt, as to which the statute gives the United States priority of right to satisfaction.
4. A case in which it was held under the circumstances, that a bond executed in July, 1862, for a loan of Confederate money should not be scaled; but should be applied as of its date as a payment of a debt due the borrower.
5. One defendant, F, files an exception to the commissioner's report; which is relied on by R, another defendant; but at the hearing in the court below, this exception is waived. The exception having been waived, R cannot rely upon it in the appellate court.
Daniel Trigg, of Washington county, died in February, 1853, and John A. Campbell qualified as his administrator. In March, 1855 Campbell filed his bill, in which he stated that he had encountered great difficulties in his administration. That at the time he qualified as administrator, he did not doubt the sufficiency of the estate to pay all its debts; but had changed that opinion in the previous November. He makes a number of the creditors of Daniel Trigg, and among them Wyndham Robertson and James Galt, parties defendants, and asks that he may administer the estate under the direction of the court. He afterwards filed an amended bill, making the widow and heirs of Daniel Trigg parties defendants.
In May, 1855, there was a decree for an account of debts, & c.; and in April, 1856 there was a decree for the sale of the real estate of Trigg.
Prior to the 19th of September, 1856, Campbell, who had been appointed a commissioner to sell the land, and the commissioner to take the accounts, had made their reports. On that day the court made a decree in which, after reciting that the cause not then being in a condition which would authorize the court to direct a distribution of the assets of Trigg's estate, ordered that John A. Campbell, the commissioner, do loan out any money of said estate then in his hands, or which might come to his hands, taking bond and good security therefor, payable to himself as commissioner; and that he give the undisputed creditors of said Trigg, or such of them as may desire it, the preference of borrowing the funds. And Wyndham Robertson being a creditor in his own right as well as representing the estate of Francis Smith, deceased, Campbell in July, 1862, lent to him $5,917.13.
No further proceedings in the cause seems to have been taken until September, 1871, when Robertson and Galt filed their answer, and also their cross-bill, setting up a claim against the estate of Daniel Trigg, on the ground that he, with themselves and three other persons, had been the sureties of Lilburn H. Trigg, as collector at the port of the United States at Richmond; that in 1853 Lilburn H. Trigg fell in arrear as collector to the amount of $24,618.80; that he was then, and continued until his death to be insolvent; that two of his sureties were also insolvent; that plaintiffs, as sureties of said Trigg, had paid of his deficiency $14,791.48; that the other solvent surety had settled with them for his one-fourth of the deficiency; and they claimed that the estate of Daniel Trigg was liable to them for his fourth, amounting to $3,697.87, as of April 7th, 1853, and that they were entitled to priority over the general creditors, on the ground that they were entitled to be subrogated to the right of the United States.
The accounts were again referred to the commissioner, who made his report; to which there were exceptions by Robertson and Galt, and by Findlay and others. The only question in this case related to the claims of Robertson and Galt; and the facts as to these are stated in the opinion of Judge Burks.
The cause came on to be heard on the 23d of October, 1875, and again on the 17th of January, 1876. By the first decree the court held that the single bill executed by Robertson to Campbell in 1862 should be, to the amount decreed in favor of Robertson, settled as of its full value, and for any balance of said debt it should be scaled as of its date. By the second decree it was held that Robertson and Galt were only entitled as against Daniel Trigg's estate to one-sixth of the amount they had paid; but for this they were entitled to be substituted to the rights of the United States, and to have priority over the other creditors; and there was a decree in their favor for this sum, with interest from the 25th of April, 1853, until paid. And thereupon Robertson applied to a judge of this court for an appeal; which was allowed.
The case was argued by J. L. White, for the appellant; A. A. Gray, for Galt; Gilmore, for Trigg's adm'r, and J. W. Johnston, for the creditors.
Contribution among sureties is founded in natural justice and the equitable principle of equality of burden and benefit. If one of a number of sureties discharge the common burden, the others are bound to contribute equally to his relief, in the event of the insolvency of the principal; and if any of them are insolvent, their shares must be apportioned among those that are solvent. These principles are well settled. Preston v. Preston and others, 4 Gratt. 88; Wayland v. Tucker and others, Id. 267; 1 Story's Eq. Juris. §§ 493, 495; Dering v. Earl of Winchelsea, 1 Lead. Cas. Eq. and notes (4th ed.), 120 (top p.)
There were six sureties upon the official bond of Lilburn H. Trigg as collector of customs for the district of Richmond, and if they were all solvent, and James Galt and the appellant (Robertson) have shown themselves entitled to contribution at all, the estate of Daniel Trigg, one of the sureties, would be bound to contribute to Galt and Robertson one-sixth part of whatever sum was paid by them to the United States for their common principal, with interest thereon from the date of such payment. But it is very clear from the evidence that two of the sureties--namely, Henry L. Brooke and Charles Bell Gibson--were, at the time the payment was made and ever afterwards, utterly insolvent, and have never contributed anything to reimburse Galt and Robertson for the amount paid by them. The only witness examined touching the solvency of Brooke and Gibson describes them as being in the most straitened circumstances, and as " living from hand to mouth" ; further testifying, that he was very familiar with all the circumstances attending the execution of the bond of Trigg as collector, and that he always regarded the names of Brooke and Gibson " " as mere make-weights." No countervailing testimony was taken. If any witness could have been found who would have sworn to the solvency of these men, or who would have said that it was even doubtful, it is fair to presume that he would have been produced and examined in the cause.
When the accounts, ordered by the court, were being taken, Robertson furnished to the commissioner a statement made out by Galt, showing the net amount paid by them to the United States on account of the default of the collector, to which statement there was subjoined a written memorandum, signed by them and dated July 30, 1855, in the following words: This paper is relied upon by the counsel for some of the appellees, as showing an admission by Galt and Robertson, that they were entitled to receive from Daniel Trigg's estate only one-sixth part of the amount paid by them to the United States.
This is not, we think, a fair construction of this paper. They evidently mean to claim all they are legally entitled to receive, and they " suppose" their " legal claim is limited to one sixth," & c. At most, this language only shows inadvertence, or mistake in a matter of law. It does not amount to an estoppel. No one has been misled by it to his prejudice. Although they may have supposed and so stated, that they were legally entitled to receive from Dr. Trigg's estate only one-sixth part of the money paid by them, yet if they were really entitled to have one-fourth of that sum instead of one-sixth, they are not precluded by anything in that paper from receiving the one-fourth. They certainly never intended to release or abandon any right they had. Indeed, in that very paper, they say, that they " expect another one-fourth to be paid out of Dr. Trigg's estate" ; and such is their claim, asserted as well in their cross-bill as in their answer to the...
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