Van Brunt v. Gordon

Mitchell, J.

The short facts are that plaintiff and defendant took leases of certain real estate for a term of years, in which they covenanted and agreed to pay the lessors a certain rent, and to pay the taxes on the premises during the term. The premises were unimproved and unproductive, the leases being apparently purely speculative. During the life of the leases the plaintiff paid all the taxes and rent, and he now brings suit for contribution to compel defendant to pay her share.

Counsel for defendant has made an exhaustive brief upon the law as to the rights and liabilities of cotenants between each other, growing out of their mere connection with the common property, irrespective of any contract between themselves or with third persons; but, with all deference to the learned counsel, we think this is entirely foreign to the facts of this case. These taxes and rent constituted a debt which plaintiff and defendant were jointly obligated to pay, just the same as if they had bought the property, and given their joint note for the purchase money; and their rights are to be determined by precisely the same rules as if the obligation had been contracted by persons who never bore to each other the relation of tenants in common. The fact that they were tenants in common of the property for which this joint obligation was contracted has nothing to' do with the case. The simple facts are that both were equally bound by their contract to pay certain sums of money, and one of them has paid the whole. The familiar rule applies that the one who has paid more than his share is entitled to contribution from the other to reimburse him for the excess so paid, and thus equalize their common burdens. This rule is based on the maxim that equality is equity.

Judgment affirmed.

Vanderburgh, J., absent, took no part.

(Opinion published 54 N. W. Rep. 1118.)

Application for reargument denied May 23, 1893.