Kolb v. . National Surety Co.

Gray, J. The appellant argues that, when the surety company paid the judgment recovered by Smith, the effect was the same as though Adwen, for whom it was surety, had paid the judgment against him and his codefendants; that, as a judgment recovered in tort, it was extinguished by the payment and that no right of contribution against this plaintiff, or Theodore Smith, who were joint tort feasors with Adwen, survived, or existed. The general proposition is true that there is no right of contribution as between wrongdoers, which can be enforced; for a court of equity, which, alone, would have jurisdiction of such an action, will refuse to lend its aid to those who have been guilty of illegal conduct, or who do not come before it with clean hands. The legal principle, upon which contribution among those jointly indebted rests, is as just when wrongdoers are concerned, as in other cases where it is allowed, and the refusal' of a court to entertain an action to compel it is based upon considerations of the nature of the complainant’s liability and the association of the parties who incurred it. That this doctrine of equity would, or should, exclude from relief a surety, who, like this respondent, has been decreed by the court to be entitled to be subrogated to the rights and remedies of the judgment creditor, and is, in effect, in the position of a purchaser from the latter of the judgment, I do not believe. If there is a precedent, I do not find it, for such extreme application of the doctrine. In the first place a surety who pays a debt is, by the well-settled law of the land, entitled to stand in the shoes of the creditor, or to be subrogated to all of his rights, remedies and securities, with respect to any fund or lien; not upon any contractual basis, but upon established principles of equity, or, as said by Chancellor Kent in Cheesebrough v. Millard (1 Johns. Ch. 412), “on mere equity and benevolence.” In the second place the surety in this case does not *238 come within the reprobation of the court in any aspect; for the principle of equal contribution being a just 'one, even as between wrongdoers, and the denial of its recognition resting upon especial grounds, which would be peculiar to the complainant in the bill for equitable relief, this surety is not embarrassed by asking for that which the court had, in the Adwen proceeding, accorded to it. It is innocent of any wrongdoing. That it has paid an indebtedness, arising upon a judgment in tort against several, for one of the judgment debtors should not, as a matter of natural justice, deprive it of the right, approved as it .is by a decree of the court, to compel the joint debtors to contribute proportionately to the payment of the judgment now its property. The right of subrogation is founded in natural justice and it should be given effect upon purely equitable considerations. But, if my conclusion in this respect were incorrect, there is the further aspect of this case, that this surety, as against this plaintiff, was seeking to compel payment by him of the proportion of a judgment, which he, by his agreement, had promised to pay in any event and had recognized as a debt. The surety is acting most equitably and whether it be regarded as standing for Adwen, or not, it is demanding, only, that which the agreement of the appellant provided for. Both in that agreement, as in that with Adwen, the reservation'of the surety’s rights to hold the other debtors prevented a payment upon the judgment by either from operating to discharge it, as against the others equally liable therein. (See Gilbert v. Finch, 173 N. Y. 455.) But there is another conclusive objection to the maintenance of this action and that is that this appellant does not commend himself to the equitable consideration of the court. As a joint tort feasor, he is subject to the operation of the rule that a court of equity will not listen to .one seeking to be relieved of his liability under a joint judgment in tort. He has no more right to demand equitable intervention in his behalf, than if the judgment creditor had assigned his judgment to some *239 stranger to the parties and the purchaser was enforcing it as against him. as one of the judgment debtors. How can the appellant come into a court of equity and ask that .lie be relieved from paying a proportion of the judgment, which he had agreed to pay and which, in fact, is less than what might be exacted from him as his proportion % His position is highly inequitable; whether he be regarded as one of several joint tort feasors, seeking immunity from contribution; or whether he be regarded as violating his express agreement and as seeking to escape the liability he had recognized as existing under the judgment against him. I think the judgment appealed from is right and that it should be affirmed, with costs. Parker, Ch. J., Haight, Vann, Werner, JJ. (and Cullen, J., on last ground), concur; Martin, J., absent. Judgment affirmed.