Winston v. McAlpine

STONE, J. — The present proceeding may be assimilated to a bill of revivor. In such case, it is not, as a rule, permissible tore-try the claims set up and litigated in the original suit, except to the extent they remain undecided. — Story’s Eq. Pl. §§ 376, 370 a; State, ex rel. v. Mayor, 24 Ala. 701. We approve and adopt the decree of the special chancellor, rendered in this cause. Probably, no personal decree should have been rendered against Mrs. Winston, she being a married woman at the time complainants’ right accrued ; and we are not sure the special chancellor intended his decree should so operate. We do not, however, doubt that Shelton, the creditor, had a right to go against the lands descended, fot the payment of McAlpine’s debt; and that upon the undisputed facts in the record of the original suit, brought to our notice in this record, the complainants were subrogated to his rights. There is no question here of voluntary payment of the debt of another, without request. The liability rested alike on the property of each; the promise and obligation to pay were as much the obligation of one as the others — they imposed a joint duty; and when, in such case, one or more of the obligors discharges the common liability after maturity, the law raises the duty and obligation to make contribution, and to repay the proportionate share due from the defaulting co-obligors. — Stalworth v. Prestar, 34 Ala. 505. While there is no authority to order a money execution against Mrs. Winston, there can be no question of the right to order a sale of the lands, if the money is not paid. The decree is affirmed.