SALYERS v. Ross and Another.

On March 25, 1837, A. and B. became sureties on the bond of an administrator, in the penalty of $10,000, conditioned for the faithful discharge, by the administrator, of the duties of his trust. In March, 1838, the administrator procured an order of the proper Court for the sale of real estate, to pay debts, and executed another bond, in the penalty of $4,000, with C. and D. as sureties thereon, which was conditioned for the faithful accounting and proper application of the proceeds of such sale. The administrator, having sold the real estate, and applied the proceeds to his own use, A., one of the sureties on the original bond, was forced to pay a large sum of money to creditors of the estate. Suit by A. to compel C. and D. to contribute.

Held, that the bond given on the order for sale of real estate, was subsidiary to the original bond, and not a primary security, and that no suit could be maintained on it until the penalty of the original bond was exhausted. Held, also, that the sureties upon the second bond did not assume the relation of co-sureties with those upon the first, and hence were not liable in an action for contribution.

APPEAL from the Fayette Circuit Court.

DAVISON, J.-This was a suit for contribution between the sureties of an administrator. Salyers was the plaintiff below, and Benjamin and Samuel Ross the defendants. The complaint alleges these facts: On March 25, 1837, the plaintiff and David Taylor, now deceased, became sureties on the bond of one Robert Taylor, as administrator of the estate of Isaac Riggs, deceased. The bond was in the penalty of $10,000, and was conditioned that Taylor would truly and faithfully perform the duties and trusts committed to him as administrator. And the administrator, having been qualified, &c., in March, 1838, filed a petition in the Fayette Probate Court, alleging, inter alia, that the personal property belonging to the estate of the intestate, was insufficient to pay the debts outstanding against it, and praying an order to sell certain real estate, of which the intestate died seized; that the same might be reduced to assets, &c. Upon this petition, such proceedings were had, in said Court, that the real estate described in the petition was ordered to be sold, and the administrator directed to give bond, with security, in the penalty of $4,000. Such bond was, on

1860.

SALYERS

V.

Ross.

March 14, 1838, duly executed by said administrator, with Nov. Term, the defendants, Benjamin and Samuel Ross, as his sureties, who were approved by the Court. This second bond was conditioned to the effect, that the administrator should well and truly account for all moneys that might come into his hands upon the sale of such real property, and properly apply the same in the settlement of the intestate's estate. It is averred, that Taylor, as such administrator, in pursuance of the order of the Court, sold the real property described in his petition for $1,232, which amount he received, with a view of making it assets in his hands. But the plaintiff' says, in fact, that said administrator failed to perform the condition of his bond, in this, that he did not account for the moneys so received, or any part thereof, in the payment of outstanding debts of the estate, or otherwise, but appropriated the same to his own individual use. It is also averred, that, at the time the administrator so failed, there were debts outstanding against the intestate's estate to the aggregate amount of $2,950; and that for these debts, Salyers, the plaintiff in this case, as surety on the original administration. bond, was sued in said Court, and therein various judgments were rendered against him, which, in the aggregate, including interest and costs, amounted to $3,600, which amount he has fully paid; but of which the administrator of the estate of David Taylor, deceased, his co-surety, has refunded $1,800, leaving a balance of $1,800 as yet unrefunded. And it is further averred, that the defendants, Benjamin and Samuel Ross, the administrator's sureties on the bond for the faithful accounting, &c., of the moneys received on the sale of the real property-he, the said administrator, being insolvent-areresponsible for the $1,232 received by the administrator for the property sold. Yet they have refused to pay the same, or any part thereof, or in any manner to contribute their pro rata share of the amount, so paid by the plaintiff, as surety on the original bond, &c.

The defendants demurred to the complaint on two grounds:. 1. "There is a defect of parties, in this, David Taylor, the co-surety, or his representatives, should have been made parties," &c. 2. "The complaint does not state facts suffi

Nov. Term, cient to constitute a cause of action." The Court sustained the demurrer, and the plaintiff excepted.

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Ross.

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Are the sureties in the second bond, in view of the facts. stated, liable for contribution? This is the controlling inquiry in the case. It is insisted, in support of the demurrer, that the bond given on the application to sell real estate, is not a primary security, but merely subsidiary to the original bond given by the administrator. If this position be correct, the case is evidently with the defendants; because where "separate bonds are given, with different sureties, and one is intended to be subsidiary to, and a security for, the other, in case of default in the payment of the latter, the sureties in the second bond would not be compellable to aid those in the first bond by contribution." 1 Story's Eq. Jur. § 498; 1 Lead. Cases in Eq. 116 et seq. What, then, is the relation between the respective bonds now before us? Both were given under an act approved February 10, 1831, entitled "An Act to Organize Probate Courts," &c. By § 8 of that act it is provided, that the person to whom letters of administration shall be granted, shall, before the delivery thereof, execute a bond to the State, with freehold security, conditioned for the faithful performance of the duties and trusts committed to him, as administrator, according to law. And under § 19 of the same act, it was the duty of the administrator, when he discovered that the personal property was insufficient to pay the debts outstanding against the intestate's estate, to inventory his real property, and cause the same to be appraised, &c. And, upon suggestion of the administrator, it became the duty of the Court to order the sale of such property, and make the same assets in his hands under the provisions of the act; the administrator, previous to such order, filing with the clerk of said Court "such further or additional bond as the Court may require." R. S. 1831, pp. 156-161.

Under these statutory provisions, we have decided: 1. "That the bond given by the administrator, when he receives his letters, renders its obligors responsible for the proper application, by him, of the assets derived from the sale of real estate. 2. That the words 'such further and

1860. SALYERS

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Ross.

additional bond as the Court may require,' as used in the Nov. Term, statute, evidently conferred on the Court a discretionary power; and when, in its opinion, the original administration bond was sufficient to secure a proper application of all the assets belonging to the estate, including those to be produced by the sale of real property, further security would not be required. 3. That no suit could be maintained upon the additional bond until the penalty of the original bond was exhausted." Salyer v. The State, 5 Ind. 202. If this deci sion be correct, and we are inclined to follow it, the defendants are not liable for contribution; because the statute itself makes the second bond not a primary security, "but only subsidiary to the original bond given by the administrator." Indeed, it may be well assumed, that the plaintiff and defendants, in this instance, are really not co-sureties; they are not equally bound for the same prospective duties; nor are their respective engagements of the same legal operation. The plaintiff, as surety, is bound for the performance of every duty enjoined, by law, upon the administrator, while the defendants are simply bound for the faithful application of the moneys arising from the sale of the real estate, and, then, only in the event that the administrator's original bond has become insufficient, as a security, for such faithful application of moneys. And thus, not being co-sureties with the plaintiff, the defendants can not be held liable for contribution. Craythorne v. Sweinburne, 14 Vesey, pp. 159, 165, 169; Breckenridge v. Taylor, 5 Dana, 110; Harrison v. Lane et al., 5 Leigh, p. 414 to 417; Langford's executors v. Perrin, id. p. 552 to 558.

We are of opinion that the demurrer was well taken, and, it follows, the judgment must be affirmed.

Hanna, J., was absent when this case was considered.
Per Curiam.-The judgment is affirmed, with costs.
J. S. Reid, for appellant.

James C. McIntosh, for appellees.

RICHMOND and Others v. MARSTON and Others.

A. and B. in August, 1847, entered into partnership in merchandising and
milling, and became joint owners of mill property. In October, 1848, A.
filed his bill for a dissolution of the partnership, and a receiver was appointed.
B. having purchased a stock of goods for the firm on his individual credit,
it was ordered by the Court that the receiver, on delivering one half of
such goods to A., should take of him notes with security for the use of the
vendors of the goods; which was done. The receiver, having sued on
these notes, recovered a judgment; but prior to the recovery of this
judgment, 4. had fraudulently conveyed away his interest in the mill
property. Execution was, however, levied upon it, and B. became the
purchaser on sheriff's sale, and paid the amount of his bid. Suit by B. to
set aside the fraudulent conveyance made by A. Decree setting aside the
conveyance of A., and also the sheriff's sale to B., and that B. be subro-
gated to the rights of the receiver to the amount of his bid, &c.
Held, that it is only in cases where the person paying the debt, stands in the
relation of a surety, or is compelled to pay in order to protect his own
interests, or in virtue of legal process, that equity substitutes him in the
place of the creditor.

Held, also, that a stranger paying the debt of another will not be substituted
to the creditor's rights, in the absence of an express agreement.

Held, also, that the position of B. was that of an ordinary vendee at sheriff's sale, who purchases voluntarily, and that the amount he paid to the sheriff operated as a discharge, pro tanto, of the judgment, and hence there could be no substitution.

APPEAL from the Elkhart Circuit Court.

DAVISON, J.-Suit in chancery, instituted in January, 1851, by Nelson E. Marston against Danforth Richmond, Clarissa Richmond, his wife, Jared Brook and Eliakim Briggs. During the pendency of the suit, Marston died, and the action was revived in the name of Phebe Marston, his widow, and Nelson and Charles Marston, his heirs at law. The bill charges, inter alia, as follows: In August, 1847, Danforth Richmond owned, in fee, a flouring mill and warehouse, situate in St. Joseph county; and on the 25th of that month he and Nelson E. Marston, by written contract, became partners in selling store-goods and in the milling business; Richmond having conveyed to Marston one half of the mill property, estimated at $11,000, and Marston having put storegoods and other property into the concern, to equal the esti