Boone County v. Jones ( 1882 )

Servers, Ch. J.

1. BOND: original undertaking : co-sureties. I. It is insisted the bond executed by the appellant was secondary or additional to the bond sued on, and therefore the sureties on the hast named bond are primarily liable no matter when the defalcation occurred. As a holding over officer Jones

could only hold until the next general election and the qualification of his successor chosen at that time. Dyer v. Daywell, 54 Iowa, 487. It is also said it is secondary because the board of supervisors, the defendants and Jones, understood the latter would hold the office for two years as a holding over officer. The understanding of the parties cannot control as to the length of time an officer will hold his office when the term is fixed by statute. The bond signed by the appellant, therefore, was not secondary but an original undertaking.

II. The appellant claims the true doctrine “to be, that when a surety pays the debt of a principal he may compel his co-sureties to contribute, and if the creditor has other securities out of which the debt can be made, then the surety paying the debt will have the right to full substitution and reimbursement.” Conceding this to be so, it is evident the latter part of the jmoposition depends upon the question whether the right to contribution exists; and that depends on the further question, whether the person demanding- contribution is a co-surety with the person on whom the demand is made. Several persons may be sureties for another to the same creditor and yet not be co-sureties. It may not be essential they should be bound by. the same instrument, but they must be sureties bound for the performance of the same thing. The defendants were only bound for the j)erformance by Jones of the duties incumbent on him for a period extending from the execution of the bond signed by them until the 18th day of September, 1876, and the liability of the apj>ellant began when that-of defendants ceased. Suppose the county had recovered of the defendants for defalcation which occurred during the first named period, could they have compelled appellant to contribute in payment of the judgment on the ground he was a co-surety with them ? Clearly not, because the appellant never bound himself or became responsible for such defalcation. The converse of this proposition must be true, and that is, if there was a defalcation after the 18th day of September, 1876, the appellant could not require the defendants to contribute to the payment of such defalcation. Therefore the defendants and appellant are not co-sureties entitled to contribution.

It is urged the demurrer admits the defalcation occurred prior to September, 1876, but this fact has no bearing whatever on the question of contribution. Conceding the admission to have full force and effect it amounts to this, that the appellant has paid or been compelled to pay the debt of the defendants because a judgment has been rendered against him therefor. Now, as we have seen, the appellant is not entitled to contribution. Is he entitled to recover because he has paid the debt of another under the circumstances stated in the pleadings? This question has not been presented by counsel for the appellant. There is some doubt whether such a case would come within the jurisdiction of a court of equity. But whether this is so or not, we do not feel called upon to determine the question suggestéd.

Affirmed.