Opinion
09-24-1886
WYCKOFF v. GARDNER and others.
L. De Witt Taylor, for complainant. W. H. Morrow, for executors of William Gardner, deceased. J. G. Shipman, for executors of Joseph Vliet, deceased.
On bill for relief.
L. De Witt Taylor, for complainant.
W. H. Morrow, for executors of William Gardner, deceased.
J. G. Shipman, for executors of Joseph Vliet, deceased.
BIRD, V. C. John Gardner was elected sheriff in 1875. He gave bond with William Gardner, John Wyckoff, Samuel Frame, Joseph Vliet, and Joseph B. Cornish as his sureties thereon. He entered upon the duties of his office. April 19, 1877, W. obtained a judgment against five persons for $1,152.63, and costs, $87.11. An execution was issued thereon, and placed in the hands of said John Gardner, as sheriff. The money was not made, although from no want of goods. The sheriff was in fault. His bond was prosecuted, and February 19, 1884, judgment was entered thereon against John Gardner, John Wyckoff, (the complainant,) and Samuel Frame. Prior to this action William Gardner and Joseph Vliet had died, and Joseph B. Cornish had been discharged in bankruptcy. The judgment on the bond fixed the damages and costs of W. at $1,727.28. Execution issued thereon, and the complainant, one of the defendants in that suit, paid to the sheriff, in discharging that writ, $1,805.33. This bill has been filed by the complainant to compel the executors of the last will of William Gardner, and the executors of the last will of Joseph Vliet, to contribute, one-third each, of the amount so paid by him. John Gardner, the principal, and Samuel Frame, one of the sureties, are shown to be insolvent.
It is first objected that there is no amercement against the defendants in the action on the bond, but only a judgment, although there was actually an order for an amercement signed. It seems quite clear to mymind, after reflection, that the judgment and execution, and payment of the amount thereof, are quite enough to sustain the co-surety who asks for contribution. The bill alleges that an order was made directing the prosecution of the bond according to the statute. The answer neither admits nor denies the truth of the allegation. It is objected to a decree because the said order is not produced and proved. If such proof were essential in a proper case, after judgment, I conclude that the answer is not of a character to put the complainant to proof.
Then, again, it is objected that the twelfth section of the act (Revision, 1100) has not been complied with in entering the judgment. However this may be, it is not a void judgment. It may be irregular. It is a judgment on the bond given by the sheriff, who was in default. It plainly determines the liability of him and his sureties, who were joined in the action. The solvent surety so joined was bound, and was obliged to pay, and did pay. This being done, and the proof being clear as to the relations of the parties, a claim accrued to him against his co-sureties. This was according to their contract. The mutual agreement in every such case is that if one pays all the rest will contribute. Brandt, Sur. §§ 246, 247.
It is urged that the bill is defective as to parties in not bringing in the executors of William Gardner, as individuals as well as executors, and in not bringing in the administrator of a deceased legatee instead of the legatee. It seems to have been settled that the estate of a deceased co-surety is liable to contribute whether he died before the liability arises or after. Brandt, Sur. § 248. This view of the case applies alike to the executors of William Gardner and of Joseph Vliet.
It is also objected that, this complainant holds a judgment which was recovered in favor of John Gardner, the principal debtor, which is of value, and which the complainant has not applied as he should towards the reduction of the claim now before the court. The evidence does not make it clear that the judgment is of any considerable value, but it seems that the complainant is not obliged, in the first place, to realize on such judgment. According to the weight of authority, he may proceed against his co-surety at once, and, if he does realize anything, he must share it with those who have contributed. Brandt, Sur. § 238.
Still another objection is that the complainant made no demand, and gave no notice, before filing his bill. This objection is not sustained by the authorities. Brandt, Sur. § 257.
The point was made that the discharge in bankruptcy of Joseph B. Cornish could not avail him in this suit, because the liability in this case did not accrue until after his discharge, and consequently was not provable. As I read the cases, this is the law. Brandt, Sur. § 240, and references in note; Bump, Bankr. (6th Ed.) § 524; Gleeson v. Howard, 2 Curt. 643. In this case the court held "that, where the subscription price of the stock of an incorporated company is only to be paid in such installments and at such times as it may be called for, and at the time of the bankruptcy of a stockholder, and his discharge in bankruptcy, no call for the payment of his subscription has been made, a call subsequentlymade for an unpaid installment thereof is not a provable claim against the bankrupt's estate in the bankruptcy proceedings. Therefore the bankrupt's discharge is no bar to an action for such unpaid installment." Many cases are referred to in the opinion in this case, among others that of Riggin v. Magwire, 15 Wall. 549, in which Mr. Justice Bradley says: "But the better opinion is that as long as it remained wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable under the act of 1841." I can perceive of no method by which to take the case of Mr. Cornish out of these decisions. I therefore conclude that he is liable to contribute as co-surety.
It follows, that the executors of Mr. Gardner, the executors of Mr. Vliet, and Mr. Cornish, must join in relieving the complainant. They will each be charged with one-fourth of the amount paid by the complainant, with interest on such one-fourth from the time of payment. But Mr. Cornish is not a party, and no steps can be taken against him to compel payment. The others will pay one-fourth each, and each will pay one-half of the costs. I make this disposition as to costs because it was the duty of each to share his part of the burden without suit. I will so advise.