Frink v. Peabody

Wall, J. The authorities are not harmonious upon the question whether one of several joint defendants may pay a judgment against them and still keep it on foot for any purpose. We see no reason why a surety may not be permitted to use the judgment as a means of enforcing contribution against his co-surety, and to this end he might furnish money to a third person to purchase the judgment. Freeman on Judgments, Sec. 472. This, however, would be permissible only when the circumstances are such as to render it equitable to require contribution between the sureties. If one of them holds an indemnity he must show that he has properly disposed of the security before he can enforce contribution, and if it appears that he has wasted it, he is in no position to obtain relief. In this case, to the extent the money was furnished by Frink to Morrison to buy the judgment, the latter must be considered as occupying the position of the former and to be affected by the equities that would affect him. It is alleged in the bill and clearly proved that when the note was executed Frink took a chattel mortgage from Tanner upon sufficient property to indemnify the sureties against loss. This mortgage it was Frink’s duty to enforce, not only for his own benefit, but also for that of his co-surety, Peabody. But he neglected this duty and the securely was lost thereby. Hence he lost his right to call upon his co-surety for contribution and it would be inequitable to permit him to keep the judgment alive for such purpose. This is, in effect, the result reached by the decree. The appellee being the assignee of the co-surety and the owner of the land affected by the judgment may properly obtain relief as here granted. The decree will be affirmed. Decree affirmed.