Neuman v. Dreifurst , 9 Colo. 228 ( 1886 )

Elbert, J.

This is an action by tenants in common against a co-tenant for contribution, upon an alleged agreement to contribute for improvements. The allegations of the complaint show plaintiffs entitled to judgment against the defendant for her pro rata share of the expense of driving the tunnel. To this extent the complaint states a cause of action. The liability of the defendant rests on an alleged promise to contribute, made prior to the commencement of the work in 1879. 'While, by the terms of the agreement of March 11, 1882, certain royalties coming to the defendant are to be applied in payment of the amount due, there is no agreement upon the part of the plaintiffs, either express or implied, to look to this fund exclusively for payment. It was still competent for them to sue at any time upon the original promise to contribute for the amount admitted to be due March 11, 1882. The agreement of March 11th appears to be the result of an accounting at that date of expenses incurred in driving the tunnel, and by it the defendant in this behalf admits an indebtedness to the plaintiffs of $646.37. For this amount, less the proper credits, the plaintiffs were entitled to judgment, with statutory interest from the date of settlement. Glen. Laws, 513. This settlement must be taken to have included all interest due the plaintiffs up to that date. If there was an agreement to thereafter pay two per cent, on the amount found due, it should have been provided for in the written contract. In the absence of any such provision, statutory interest only can be recovered. It was error for the court to allow interest at the rate of two per cent.

The court also erred in decreeing a lien on the lode. There is no provision in the agreement of March 11th that the indebtedness of defendant shall be secured by a lien on her interest in the lode, and evidence of a contemporaneous parol agreement to that effect, as alleged in the complaint, would not be admissible. An action by a tenant in common against a co-tenant for contribution for improvements does not lie, except upon an agreement to contribute. Washb. Real Prop. *421. In partition, it is true, courts will adjust the equities of the parties in this behalf, and in other cases a lien has been raised as against other creditors, but we fail to find any case like the one at bar where a lien has been decreed. The indebtedness here arises upon contract, and stands upon the same footing as any ordinary indebtedness arising ex contractu, with respect to which the creditor must pursue his remedy at law, and to secure which a court should not go outside of the contract of the parties, and decree ex aequo et bono a lien on the estate of the debtor.

A further objection to the complaint lies in the fact that it seeks to set aside the conveyance by the defendant Neuman to the defendant Schueler. In this respect the complaint is in the nature of a creditor’s bill, which cannot be maintained before judgment. Burdsall v. Waggoner, 4 Colo. 256; Allen v. Tritch, 5 Colo. 222. In the meantime the attachment' act affords the plaintiffs a remedy against any fraudulent transfer.

The judgment of the court below is reversed and the cause remanded, with directions to dismiss the complaint as to the defendant Schueler, and with leave to plaintiffs to file an amended complaint.

Reversed.