Waters's Representatives v. Riley's Adm'r. , 2 H. & G. 305 ( 1828 )

Buchanan, Ch. J,

at this term delivered the opinion of theeourt. It appears from the admissions in the cause, that on the 17th of September 1806, George Riley and Richard Waters, as sureties, entered into a joint administration bond, with Meshach Browning, administrator debonis non of John Holmes, that Richard Waters died in the year 1810, and George Riley in 1814 or 1815, on whose estate the appellee administered; that after the death of Waters, judgment to a considerable amount were obtained on the administration bond, against Browning, and Riley, the surviving surety, on account of which large payments were made by Riley, Browning being insolvent; that the bond was drawn and executed by order of the orphans court of Montgomery county, in the form in which it appears, by which tribunal it was intentionally required to be “■joint,” and not “joint and several;” and that since the death of Waters, his real estate has been sold for the payment of his debts, under proceedings regularly instituted for that purpose.

The proceeds of which, in the hands of the trustee, are sought to be subjected to the payment of half the amount so paid by George Riley, on account of the judgments rendered against him and Browning on the administration bond, which is resisted on the part of the heirs and representatives of Waters. In the case of a joint bond, the remedy at law survives against the Surviving obligor, and is lost as against the representatives of him who first dies.

If then, this was a suit at law, on the bond, by those interest» éd in the estate of Holmes, against the representatives of Waters, it clearly could not be sustained, the remedy, by the death of Waters, having been lost as against his representatives. Nor could chancery, in proceedings between the same parties, fix the representatives of Waters, with a liability which did not exist at law. The general rule being, that where the remedy at law is gone, chancery will not revive it, in the absence of any accident, fraud or mistake; to which the case of a - bond, where all are principals, has been held to be an exception, each being equally benefited, and under an equal original moral obligation to pay the debt, independent of the bond, to which equity relates back, when the remedy at law on the bond is gone. But in the case .of a surety, who is bound only by the bond itself, and is not under the same moral obligation to pay, equity will not interfere to charge him beyond his legal liability.

And surely there is no evidence here of either mistake or fraud. The act of assembly, under which the bond was taken, does not require that such bonds shall be “joint and several,” but is silent on that subject; and the admission stated in the record is, that it was intentionally ordered by the orphans court,' to be drawn and executed as a joint bond. Mistake then, there was none, since, it is admitted, that what was done, whether judiciously or injudiciously, was intentionally done. And there is as little evidence of- fraud of any kind. On whom could fraud have been committed? Not by the parties, or cither of them, upon'the orphans court, because they executed the bond, under, and in pursuance of the directions of the. court; and certainly not by the court itself, of which it may be proper .to remark, there has not been the slightest insinuation. And Waters, not having been a principal in the bond, but only a surety, the exception in relation to principals, who are under the same moral obligation to pay the debt, being equally benefited, would not reach the case. Is there, then, in this case, any thing to enable a court of chancery to extend to the appellee any relief, to which those interested in the estate of Holmes would not have been entitled? If there is, we have not been able to perceive it. There is no doubt (as a general principle,) that a surety, who has paid the debt, may compel his. co-security to make contribution; or he may, by substitution, take the place of the creditor, and acquire all his rights against the principal debtor. But he can acquire no rights that the creditor had not, and cannot, therefore, compel a contribution by the representatives of his deceased co-security, against whom the credit tor had no remedy. So long as the securities in a joint bond are living, the creditor has his remedy against both, and one may recover against the other a just proportion of what he is made to pay, both being under the same obligation to pay. But if one dies, the remedy, as to him, is gone, and the duty, and the remedy both survive against the survivor; and there being ..nothing due from the representatives of the other, to the creditor, a payment by the survivor cannot be for, or on their account, nor can it create any liability in them that did not before exist. In such a case the surviving surety pays only his own debt, in which the representatives of the other have no concern, and his only remedy is against the principal debtor. This is just that case; on the death of Richard Waters, the-remedy on the administration bond of those interested in the estate of Holmes, survived against George Riley, the surviving eo-security, and Browning, the administrator and principal in the bond, with no liability resting on the representatives of Waters. The payments, therefore, by George Riley, on the. judgments obtained against him and Browning, could create no charge against the representatives of Waters, on account of debts, for which they were in no way responsible; and which could not by the creditors harm been enforced against them either in law or equity. In this view of the case, we think that the proceeds of the real estate of Waters, in the hands of the trustee, cannot be charged with any proportion of the sums, paid by George Riley on account of those judgments; and that the decree ought to be reversed.