Hudson's Admr's v. Combs

•Opinion of the court by JUDGE BURNAM Affirming, on original APPEAL AND REVERSING ON CROSS APPEAL OF W. M. COMBS. H. D. Back, as sheriff of Breathitt county, executed bond for the collection of the State revenue for the year .1882, with W. M. Combs, H. T). Hudson, and Joe Little [765] as liis securities. He failed to pay $1,315.55 of tlie State taxes, and for which amount suit on his bond in the Franklin Circuit Court was brought, and a judgment was rendered against him and his securities by default for this amount on the 1st day of April, 1883, with interest at 10 per cent, and $4.15 costs. After the entry of this judgment, and before the issue of execution thereon, Hudson died, and on 'the 23d day of January, 1884, an execution was issued on the judgment, which was dix-ected to the sheriff of Breathitt ciounty, and appellee Combs’ property to the amount of $1,575 was sold by the sheriff to satisfy it. In February, 1889, he instituted this action against the administrators and heirs of Henry Hudson for contribution as co-security, and alleged that at the tinxe of his death he owned a tract of land, which was specifically described, and prayed that it should be sold to satisfy one-half the amount paid by him as security xxpon the bond of Back, which was alleged to be $787.50. It was also alleged that both Back axxd Little, the other security, were insolvent.. The defendants answered, and pleaded: First, that their ancestor never executed the bond, .and luxd no notice of the pendency of the suit in the Franklin Circuit Court; second, that Back had paid the full amount of the judgment to appellee, and that the other security, Little, was solvent; third, that no demand was made of the administrator of decedent before the institution of the suit. And in an amended answer, which was filed some years after the institution of the suit, it was alleged that plaintiff had received $800 from Back on the 28th of December, 1896, and with which sum the amoxxnt paid by him on judgment should be credited. This averment was not denied. The circuit judge rendered a judgment in favor of appellee for $88, with interest from the 15th of [766] February, 1889, the date of the institution of the suit, and from that judgment both parties have appealed. Appellants claim that under section 8, c. 104, General Statutes, they are not precluded from making any defense which might have been made to the suit in the name of the Commonwealth. This allegation is denied. The legal presumption is fhat every step necessary to the rendition of the judgment had been properly taken; and, when this fact -was challenged or denied, clearly the burden rested upon appellants to establish their contention that they had no notice of the suit of the State against Back and securities. The next point relied on is that no demand was made of the personal representatives of decedent before the institution of this suit. The motion of appellants to dismiss appellee’s petition because no demand, accompanied by proper affidavits, was made to the administrator for the payment of the debt sued on before the institution of the suit, was not añade until the second day of March, 1897, several years after the institution of the suit, and after the case had been fully prepared for submission; and the testimony clearly shows the justice of the claim. By joining issue and preparing tihe case on its merits without objection, appellants had waived their right to require a dismissal of the suit at the time the motion was made. It was then only necessary that the affidavit should be made before the entry bf a judgment. See Worthley v. Hammond, 13 Bush, 516; Perry v. Seitz, 2 Duv., 122; Usher v. Flood (Ky.) 17 S. W., 132. (12 Ky. L. R., 722). The necessary affidavit was incorporated in the petition, and the motion to dismiss was properly overruled. The appellee, W. M. Combs, has prosecuted a cross appeal, and claims that the circuit judge erred in holding [767] that Joe Little, the third security, was solvent, and that for this reason he was not entitled to recover his proportion of the judgment from appellants. He also complains that, even if the circuit judge was right on this question, he is still entitled to a judgment in a much larger sum against .appellants than $88. The testimony shows that Joe Little had no personal property, 'but that he owned and was in possession of a tract of land, which was occupied by him as a homestead, which wias more than sufficient to have discharged his proportion, of the debt sued for; and section 1176 of the Kentucky Statutes provides, viz.: “That judgment in the name of the Commonwealth or county against sheriffs and other public collectors, their sureties or their heirs, devisees or personal representatives or any of them, shall bind the estate, legal or equitable, of all the defendants to said judgment from the commencement of the action or motion till satisfied.” And it w.as held by this court in the case of Com. v. Cook, 71 Ky., 220, that the homesteads of 'sureties of a sheriff were liable to an execution in favor of the State which issued ‘on a judgment rendered against the sheriff and his sureties for public dues; and this rule has been followed by this court in ¡a number of subsequent adjudications. Under the rule laid down in these cases, the State could have levied upon the homestead of Little, and subjected it to its judgment; and, as appellee has been compelled to pay not only his proportion of the judgment due the State, but also Little’s proportion, he was entitled to be subrogated to all of its rights and remedies in a suit against Little for contribution for his pro rata of such judgment; and the homestead of Little was liable to the payment of his contributable share of such judgment. It therefore [768] follows that, in so far as this debt was concerned, Little was solvent, and that appellee was only entitled to Recover from Hudson's estate one-third of the amount paid by him in satisfaction of the execution due to the State, after crediting; the execution so paid with $800 collected by him from Back on the 21st of December, 1890, with 6 per cent, interest from the time he paid the debt to the State. No explanation is made as to how the circuit judge arrived at $88 as the amount due appellee at the date of the institution of this suit. We think it is manifest that Combs was entitled to a judgment for a larger amount. For the reasons indicated, the judgment is affirmed upon the original appeal of Hudson’s administrators, and reversed on the cross appeal of W. M. Combs, and rbmanded for proceedings consistent with this opinion. Judge Huffy dissents from su much of this opinion as bolds that the homestead of Little was liable to the claim of Combs for contribution.