Beck v. Tarrant , 1884 Tex. LEXIS 112 ( 1884 )

Willie, Chief Justice.—

One of the principal points raised in this case has been already decided in the case of Slaughter v. Owens, 2 Texas Law Review, p. 285.

In that case the makers of a note secured by a vendor’s lien had been sued within the period of limitation and a personal judgment had been obtained against them. Subsequently, and after limitation would have barred a recovery upon the note, but not upon the judgment, a proceeding was commenced to revive the latter and enforce the vendor’s lien as against a purchaser from the original vendees of the land for which the note was given. It was held that the judgment kept the debt alive and preserved the vendor’s lien, and, so long as it was subsisting and valid as a personal claim against the defendants therein, it existed also as a foundation for O * proceeding against a purchaser from them to foreclose the vendor’s lien.

The debt secured by the vendor’s lien was therefore a subsisting one at the time the lien was lifted from the land of appellants by the payment of the judgment, as well as at the date of the commencement of this suit.

This view dispenses with a consideration of the position taken by appellants, that their land occupied the place of a surety for the payment of Loggins’ debt, and when that debt xvas four years old it could not be enforced against the land. But if this be true, Tar-rant’s land xvas a co-surety for the payment of the same debt, and this having been satisfied xvhile the lien subsisted, limitation ran in favor of appellants from the date of the payment of the judgment and not of the execution of the note.

“ The statute of limitations begins to run between co-sureties at the time the debt is paid, irrespective of the time when the obligation xvas entered into or became due.” Brandt on Suretyship, § 259.

The same author also announces the rule of laxxr to be, that “ where suit is commenced against one of two co-sureties before the debt is barred and judgment is recovered against him, and the debt is paid by him after the time when the statute would have been a bar, if no suit had been previously brought, and after the debt is barred against the co-surety, the statute begins to run between the sureties from the time of payment; and the surety who pays may recover contribution from his co-surety at any time after such payment and within the statutory limitation.” Id.

It is not absolutely necessary for the affirmance of this case that "we should go this far, but under the theory of counsel for appellants, that their lands and that of Tarrant were co-sureties for Loggins’ debt, it would establish that the claim of appellee for contribution was not barred by limitation.

The statute of limitations not barring the claim, there can be no doubt of the right of Tarrant to the relief asked by him and granted below. The case presented is that of a common charge resting upon land belonging one-half to Tarrant and the other to the appellees. These owners “stand upon an equality with respect to their individual titles and relations with the holder of the charge.” The maker of the note (Loggins) conveyed to Stacy, under whom appellants claim, and to Calvin, under whom the appellees deraign title in equal shares, at the same time and in the same deed. As between the owners of the land at the time judgment was paid, and Loggins, who stood in the position of an original mortgagee, neither had a right to demand that the other’s portion should be first subjected to the mortgage debt. The equities between themselves being equal, and one having redeemed, he is entitled to a pro rata contribution from the other owners, and may keep the lien alive by equitable assignment as security for such contribution. For the above doctrines see 3 Pom. on Equity, sec. 1222.

“This doctrine,” says the above writer, “is a simple application of the maxim, ‘ Equality is equity,’ ” and “ the doctrine of contribution ” among such parties, and of “ equitable assignment to secure such contribution,” are the efficient means by which equity completely and most beautifully works out perfect justice and equality of burden under these circumstances. Id., and sec. 1221.

There is no other assigned error demanding consideration, and the judgment is affirmed.

Affirmed.

[Opinion delivered April 18, 1884.]