Craig v. Ankeney

Dorsey, J., delivered the opinion of this court. According to the facts, as we are bound to assume them to be, in the decision of this case, which has been set down for final hearing on bill and answer; the averments in the bill, qualified as they are by the answers of the appellant, Angle, [231] are so defective, and insufficient, that the right of the appellant to the aid of a court of equity, may well be regarded as a matter of great doubt, even under the curing provisions of the acts of Assembly, which prevent this court from reversing any decree, or dismissing any appeal on the ground of a want of jurisdiction, or the insufficiency of the averments in the bill; unless such objections to the proceedings were raised in the court below. The answer of Angle disproves the allegation in the bill, that the single bill, to prevent the recovery of which the injunction in this case was granted, was rejected by Craig, as a security for his debt. But that answer fails to establish the fact, that Ankeney, in signing this bill, intended it as an indemnity or counter security to Angle, for his liability to Craig; or that, as far as Ankeney was concerned, it was intended for any other purpose, than as a security to Craig, for the debt due to him by Barnetl. Angle, and Ankeney, must, then, each be regarded as security to Craig, for the same debt, being equally bound, by separate instruments, for the payment of the whole debt. A payment thereof, by one of them, redounded with equal benefit, to the discharge of the other. Upon every principle, therefore, of morality, equity, and common justice, if one of them paid the whole debt, he had a right, by way of contribution, as well in a court of law, as in chancery, to recover, from the other security, a moiety of the sum paid. It was contended in the argument, that Angle could make no claim to contribution from Ankeney, because they were bound, as securities, by different instruments. But there is no foundation for such a suggestion. The doctrine of contribution is not founded in contract; but is an implied equity, resting upon the plainest principles of morals and natural justice. For, in the language of justice Story, “ as all are equally bound, and are equally relieved, it seems but just, that in such a case, all shall contribute in proportion, towards a benefit obtained by all, upon the maxim, ‘qui sentit convrnodum sentire debet el onus.’ ” In commenting upon this subject, the learned justice, in 1 Story’s Equity p. 549 sec. [232] 495 states, that “originally, it seems to have been questioned, whether contribution between sureties, unless founded upon some positive contract between them, incurring such liability, was a matter capable of being enforced at law. But there is now no doubt, that it may be enforced at law, as well as in equity, although no such contract exists. And it matters not, in case of a debt, whether the sureties are jointly and severally bound, or only severally; or whether their suretyship arise under the same obligation or instrument,- or under divers obligations or instruments, if all the instruments' are for the same identical debt.” The same principles are laid' down with equal perspicuity and distinctness in the 1 Law. Lib, 160, where it is* stated, that “the right to- contribution exists between all sureties of the same degree, whether they are engaged jointly or severally, and if severally,-whether they are engaged all in one instrument or several instruments, and whether they have a knowledge of one another's’’ engagements or not;* — because, in all these different cases, a payment by-'one surety, is equally a benefit to all other sureties.” It hence follows, that it would be against equity arid justice to" permit Angle to recover from Ankeney, more than a moiety of the amount paid by the former, in satisfaction of a debt, for the payment of which both were equally responsible. And it is- equally opposed to equity and conscience, that Washington county court should have unconditionally arrested the arm of the law, in the suit on the law side of the court,- by Angle against Ankeney; and by a perpetual injunction have prohibited the-former from recovering any thing'at law against the latter. It is one of the oldest and soundest maxims of chancery jurisdiction, “ that he who seeks equity, must do equity.” And it is a maxim equally well established,-that a court of chancery never will-,-, against equity and conscience, interpose, by way of injunction, to arrest the progess of proceedings- at law; unless required so to- do, upon principles of public policy. Such principles of policy have nothing to do with the case now before us. What then should Ankeney properly have shewn by the statements in his bill, to entitle himself to the relief which he sought? He should have stated, that he tendered to Angle [233] the moiety, with the interest thereon, of the single bill, which he had given to Craig; or that he was ready and willing to bring the same into court to be paid to Angle, unless upon the condition of his willingness to make such payment, he had no standing in a court of equity; nor even a colorable right to the interposition of such a court, in his behalf, in the mode in which he has applied for it. It appearing to this court, upon the facts as brought before it, upon the final hearing on the bill and answers, that the purposes of equity and justice would be subserved by tho granting of a perpetual injunction in this case, upon the defendant, Ankeny, paying to the appellant Angle, or bringing the same into Washington county court to be paid to him, one-half part of the principal and interest due on the single bill in question, this court will pass a decree reversing the decree of the court, below, (but without costs in either court to either of the parties,) unless the said Ankeny shall, on or before the first day of June next, make such payment into said court, or to the appellant Angle. DECREE REVERSED WITHOUT COSTS.