Tate v. Winpree
| Decision Date | 12 February 1901 |
| Citation | 37 S.E. 956,99 Va. 255 |
| Parties | TATE. v. WINPREE. |
| Court | Virginia Supreme Court |
CO-SURETIES—CONTRIBUTION—ACTIONS-LIMITATIONS.
The right of action of a surety against a co-surety for contribution is based on an implied promise arising from the nature of the relation; and the limitation of such action is not that applicable to the written contract, but is three years, under Code, § 2920, providing certain limitations on contracts in writing and on accounts, and declaring that actions "on other contracts" must be brought within three years.
Proceedings by one Tate against one Win-free. Petition for an appeal from a decree of the circuit court Denied.
John H. Lewis and Caskie & Coleman, for petitioner.
The right of one surety to call upon his co-surety for contribution, like the right of all sureties to call upon the principal for indemnity, arises from a principle of equity growing out of the relation which the parties have assumed towards each other. That equity springs up at the time of entering into that relation, and is fully consummated when the surety is compelled to pay the debt Wayland v. Tucker, 4 Grat. 267; 1 White & T. Lead. Cas. Eq. p. 134.
The right of action in such case is based upon the implied promise arising from the equitable relations which the sureties bear to each other, and not upon the written contract by which they became sureties. The statute of limitations applicable to such a case is three years, and not the limitation which applies to the bond, note, or other writing which they have been compelled to pay. Section 2920, Code. See Faires v. Cockerell (Tex. Sup.) 31 S, W. 190, 639, 28 L. R. A. 528.
Appeal denied.
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