Apperson v. Wilbourn

Citations

• 58 Miss. 439

Syllabus

<p>1. Estate or Decedent. Suretyship. Liability to creditor. Right against co-surety.</p> <p>There were two sureties on a bond, both of whom died. The estate of one was solvent; that of the other was insolvent. The creditor proved against the insolvent estate the full amount of his claim on the bond, but received on it less than one-half thereof. The balance of the claim, which was more than half, was paid by the estate of the solvent surety. The other creditors of the insolvent estate, with the administrator, filed a bill in chancery against the ■ solvent estate to compel it to pay back one-half of the sum paid by the insolvent estate on the claim under the bond. The bill was dismissed on demurrer. Held, that the action of the Chancery Court in dismissing the bill was-correct.</p> <p>2. Same. Being insolvent. Joint liability. Contribution from, cosurety.</p> <p>If, in the case above stated, the solvent estate had first paid the whole of the-joint debt, it would have been entitled to prove only half of the same against the insolvent estate; but after the creditor has proven the whole unpaid claim against the insolvent estate, as he had the right to do, the insolvent estate,, having paid less than half of the demand, cannot recover from the solvent-estate the excess of the payment made by the former over what it would have been compelled to pay if the latter had first paid the whole of the joint debt and then probated its claim against the former. As between the sureties, the estate of the. insol vent has not paid more, but less, than he impliedly contracted to pay; and therefore it has no claim against the estate of the solvent surety, which has paid more than he contracted to pay.</p>