Hutchison v. Roberts

In the court below Saulsbury, Chancellor, delivered the following opinion: Where there are two or more sureties for the same principal debtor or for the same debt or obligation, whether on the same or different instruments, and one of them has actually paid or satis [462] fled more than his proportionate share of the debt or obligation, he is entitled to a contribution from each and all of his cosureties, in order to reimburse him the excess paid over his share, and thus to equalize the common burden. The same doctrine applies and the same remedy is given between all those who are jointly or jointly and severally liable on contract or in the nature of contract. This principle does not apply where the debt or obligation for which there are two or more sureties for the same principal debtor is not the same. One or more obligees in a bond of indemnity given to three persons by a principal debtor for whom they were severally sureties (but not for the same debt or obligation, and on different instruments,) according to their liability as such sureties for the principal debtor, are not liable to account in equity to their co-obligee in said bond for the sale or assignment of their individual interests in said bond of indemnity or judgment thereon, or for the money received from a purchaser of said interests for a valuable consideration. The complainant, Samuel Hutchinson, Jr., was surety for John H. Bewley, to one Tilghman Foxwell, in a judgment bond for the payment of $1,000. Samuel Roberts was surety for said Bewley to Charles Numbers in a bond, the debt of which originally was the sum of $3,000. Daniel Palmatary was surety for said Bewley to William Sharp for the sum of $700. Bewley, on the 12th day of October, 1878, executed a judgment bond, to said Hutchinson, Roberts and Palmatary, in the sum of $8,900, conditioned for the payment to them of the sum of $1,950. In the body of the bond there was a note in the words “ This bond is given as a further security as my indorser on certain judgment bonds and for the mutual benefit of each party named in the within obligation, according to liability for me as surety.” Judgment was entered on the bond so executed by Bewley in favor of his said indorsers on the 14th day of October, 1878. The several sureties afterwards paid the several sums of money, respec [463] lively, for which they were respectively sureties. The sum paid by Hutchinson on the 13th day of July, 1882, was $1,290. Samuel Roberts, on the 12th day of December, 1881, paid the sum of $630.05 principal and interest to Charles Numbers. Daniel Palmatary paid to William Sharp, on the 10th day of December, 1881, the sum of $875 principal and interest; and each of the sureties respectively took assignments of the evidence of their indebtedness respectively, as sureties for said Bewley. On the 12th day of December, 1881, Daniel Palmatary assigned, transferred and set over all his part, share and interest in the judgment in favor of Samuel Hutchinson, Jr., Samuel Roberts and Daniel Palmatary, verms John H. Bewley, unto Mary J. Bewley, wife of John H. Bewley, at her risk of collection, in consideration of the sum of $700, with interest thereon from October 10, 1887, that being the amount for which he, said Palmatary, was liable as surety for said John H. Bewley, and which had been paid by him. On the same day Samuel Roberts made a similar assignment of his part, share and interest in said judgment, for the sum of $630 (being the sum for which he was liable as surety for said John H. Bewley, to Charles Numbers,) unto the said Mary J. Bewley, wife of John Bewley, expressly at her risk of collection. The judgment of Samuel Hutchinson, Jr., Samuel Roberts and Daniel Palmatary v. John H. Bewley, was the same judgment recovered by them against John H. Bewley on the said bond, executed in their favor by Bewley to them as his sureties as aforesaid. It is not disputed, but in fact admitted, that the money so paid to Palmatary and Roberts as a consideration of their respective assignments in said judgment to Mary J. Bewley was her own individual and exclusive property and money, and not the money of John H. Bewley, her husband. Hutchinson has never received anything from anybody in consideration of payment of his share, part and interest in said judgment of himself, Roberts and Palmatary against Bewley, and has [464] never made any assignment thereof to any person. It seems that John H. Bewley was at the time he executed the said bond in favor of Samuel Hutchinson, Jr., Samuel Roberts and Daniel Palmatary and is now insolvent. In his bill filed in this case Hutchinson, the complainant, prays: “1. That the said Samuel Roberts may be decreed a trustee for your orator for the sum of $178.26 with interest thereon from the 12th day of December, 1881, and that the said Samuel Roberts be decreed to pay to your orator the said sum of $178.26 with interest thereon from the 12th day of December, 1881. “ 2. That the said Daniel Palmatary may be decreed a trustee for your orator for the sum of $247.56 with interest thereon from the 12th day of December, 1881, and that the said Daniel Palmatary be decreed to pay to your orator the said sum of $247.56-with interest thereon from the 12th day of December, 1881. ‘‘ 3. That the said Samuel Roberts and Daniel Palmatary may be decreed trustees for your orator for the sum of $425.82 with interest thereon from the 12th day of December, 1881, and that the said Samuel Roberts and Daniel Palmatary be decreed to pay to your orator the said sum of $425.82 with interest thereon from the 12th day of December, 1881. “ 4. That the said Samuel Roberts may be decreed a trustee-for your orator, for the excess he received beyond his just and equitable pro rata share or part which shall be found in the determination of this cause, and that he be decreed to pay the same to-your orator with interest thereon from the 12th day of December,. 1881. “ 5. That the said Daniel Palmatary may be decreed a trustee for your orator, for the excess he received beyond his just and equitable pro rata share, or part which shall be found in the deter465 ruination of this cause, and that he be decreed to pay the same to your orator, with interest thereon from the 12th day of December, 1881. “ 6. That the said Samuel Roberts and Daniel Palmatary may be decreed trustees for your orator, for the excess they received beyond their just and equitable pro rata shares or parts which shall be found in the determination of this cause, and that they be decreed to pay the same to your orator, with interest thereon from the 12th day of December, 1881. “ 7. That the complainant may have such further or other relief as the nature of the case may require.” The contention of the counsel for the complainant, if I properly understand him, is that the bond to Hutchinson, Roberts and Palmatary being joint, any payment by anybody for any interest therein, or as a consideration for the assignment of any interest therein, by any of the obligees therein, necessarily inures to the benefit of all the obligees in pro rata'proportions, or according to their respective interests therein, as the several sureties of the said John H. Bewley. His idea seems to be that the bond of itself being property, anything received on account of any interest therein must be applied equitably for the benefit of all the obligees. Now it is true that in one sense the bond executed by Bewley, in favor of Hutchinson, Roberts and Palmatary is property, but property not in Bewley, but the obligees in said bond ; it is what is called a chose in action. As such it is payable to, assignable by and descendible from the obligees, beneficially, according to the interests of each therein. It is no property of John H. Bewley, nor assignable by nor transmissible from him. It is a burden or obligation upon him which is legally enforcible against any estate he may have or acquire; and in case of his death, remaining unpaid, it would not be [466] assets of his estate, but would constitute a debt which the assets of his estate would be bound to pay. The only effect of the assignment of his interest, in the judgment against Bewley by Roberts to Mrs- Bewley, was the substitution of her in his place, or rather to his interest therein as his assignee. The same may be said in respect to the assignment by Palmatary to her. These assignments in no respect operate as a payment by John H. Bewley or discharge him from obligation to pay any part of said judgment to any person entitled to any interest therein, whether as an original obligee or as an assignee of such obligee. The obligation of Mr. Bewley remains the same as to amount of payment on said judgment as it was at the time of the confession thereof. The beneficial interests therein have only in part been changed by the assignments made by two of tl e obligees to Mrs. Bewley at her own risk; so that since the assignments the beneficiaries in any money which may be received on said judgment are Samuel J. Hutchinson, Jr,, and Mary J. Bewley, and not Samuel J. Hutchinson, Jr., Samuel Roberts and Daniel Palmatary. But this in no manner affects the share and interest which Mr. Hutchinson will be entitled to receive out of the moneys which may be received hereafter from John Bewley or his estate on said.judgment. I do not understand that it was denied in the argument that each of the obligees in said bond had such a beneficial interest therein as was in equity assignable. Indeed, no question could have been raised in this respect. The right is too clear to be questioned. The only contention is whether, or not Mr. Hutchinson, the complainant, is entitled in equity to have a pro rata share, according to the condition of the bond from Bewley to Hutchinson, Roberts and Palmatary, of the money received by Roberts and Palmatary from Mrs. Bewley, their assignee. If Hutchinson is so entitled, it must be upon the equitable principle of contribution among individuals, subject to a common burden, and where one bears more than his proper share thereof. [467] This right of contribution in equity may be thus described. Where there are two or more sureties for the same principal debtor and for the same debt or obligation, whether on the same or on different instruments, and one of them has actually paid or satisfied more than his proportionate share of the debt or obligation, he is entitled to a contribution from each and all his cosureties, in order to reimburse him for the excess paid over his share, and thus to equalize their common burdens. The same doctrine applies and the same remedy is given between all those who are jointly and severally liable on contract or obligation in the nature of contract. The right, however, may be controlled or modified by express agreement among the cosureties or debtors. This doctrine of contribution rests upon the maxim “Equality is equity.” Although contribution is based upon general considerations of justice and not upon any notion of an implied promise, a jurisdiction at law has become well settled which is sufficient in all ordinary cases of suretyship or joint liability. The equitable jurisdiction, however, still remains and has some important advantages. All the-cosureties and the principal debtor being parties to the equity suit, the liabilities of each, and their exoneration by the principal debtor, can be adjusted and established by a single decree. If one or more of the cosureties are insolvent, the plaintiff can in equity obtain a proportionate increase of contribution from the others that are solvent. It seems, however, that the surety must first resort to the principal debtor, and that he can only compel contribution in equity when he has failed to obtain exoneration from the principal. In the case before me, however, it is admitted that John Bewley is insolvent. While the right to contribution exists among sureties, exoneration exists as against the original debtor; and hence it follows that in the payment made by the principal debtor to one or more of the suretips or any assignment or receipt by such of the lands, goods, chattels, rights or credits of the principal debtor, will inure to the benefit equally of [468] the other cosureties to whom such an assignment or transfer has. not been made; and they will be entitled to contribution by the sureties to whom such assignment or transference may have been made. See 3 Pomeroy, Eq. Jur., § 1418 and notes, where the authorities are very numerously cited. These principles conclusively show that the money, property and effects which have been received by one cosurety in discharge or payment oí a debt of a principal or towards a relief from the payment of such debt must be the money, property and effects of the' principal debtor and not those oí a purchaser of an interest due in. an obligation by the principal to the sureties or other persons. It is not even suggested in the present case that either Roberts- or Palmatary has ever received any money, property or effects of' John Bewley, the principal debtor, towards the payment of the-principal debt or toward their relief for the payment of the-same debt or obligation. . And it cannot be contended, successfully at least, that the money or other effects of Mrs. Bewley was subject to the payment of any debt of John Bewley. She had a perfect right to do what she pleased with her own; to throw it away; to' give it away; or purchase from anyone any property or debt to-which such person might be entitled; even these two sureties, ■Roberts and Palmatary, in an obligation due by her husband to-Hutchinson and themselves; and no principle of equity as administered in equitable tribunals can compel them to share the amount so received by them from her. The bill of complaint is dismissed. Causes of Appeal. And now to wit, this fourth day of June, A. D. 1888, the following causes of appeal from the decree of the Chancellor are filed, by the appellants: 1—For that the Chancellor decreed that the bill be dismissed,, and that the complaintant pay the costs within three months. [469] 2— For that the Chancellor decided that one or more obligees in a bond of indemnity given to three persons by a principl debtor for whom they were severally sureties (but not for the same debt or obligation and on different instruments) according to their liability as such sureties for the principal debtor are not liable to account in equity to their co-obligees in said bond indemnity, or judgment thereon, or for the money received from a purchaser of said interests for a valuable consideration. 3— For that the Chancellor decided that the said Samuel Roberts and Daniel Palmatary were not liable to contribute to Samuel Hutchison, Jr., any part of the money received by them on account of the sale and assignment of an interest in the judgment entered upon the bond of said John H. Bewley, made, executed and delivered to Samuel Hutchison, Jr., Samuel Roberts and Daniel Palmatary for the real debt of $1,950. Dated October 12th, 1878. 4— For that the Chancellor decided that the said Samuel Robberts and Daniel Palmatary were not liable to contribute to Samuel Hutchison, Jr., their co-obligee, any part of the money received by them in consideration of the sale and assignment of an interest in the' said judgment for the reason that the money paid to them in consideration of said sale and assignment was not the money of John H. Bewley. 5— For that the Chancellor decided that the said Samuel Roberts and Daniel Palmatory could sell and assign an interest in said judgment and not be liable to contribute to Samuel Hutchison, Jr., any part of the money paid in'consideration of said sale and assignment of said judgment. 6— For that the Chancellor decided that said bond upon which said judgment was entered was not property placed in the hands of Samuel Hutchison, Jr., Samuel Roberts and Daniel Palmatary by [470] John H. Bewley for the mutual benefit and advantage of said Samuel Hutchison, Jr., Samuel Roberts and Daniel Palmatary 7— For that the Chancellor decided that the interest of the said Samuel Hutchison, Jr., Samuel Roberts and Daniel Palmatary, óbligeas in said bond, was divisible and that each held their interest in severalty, and might sell and assign their respective interest without liability to contribute to their co-obligees their just and proportionate share or part of the money received on such sale and assignment. 8— For that the Chancellor decided that the said Samuel Hutchison, Jr., was not entitled to contribution from Samuel Roberts and Daniel Palmatary, for the reason that the money paid to said Samuel Roberts and Daniel Palmatary on account of said sale and assignment was the money of Mary J. Bewley and not the money of John H. Bewley. 9— For that the Chancellor decided that the only effect of the sale and assignment made by Samuel Roberts and Daniel Palmatary was the substitution of Mary J. Bewley in the place of Roberts and Palmatary. 10— For that the Chancellor decided that the said Samuel J Roberts aud Daniel Palmatary were not trustees for the said Samuel Hutchison, Jr., for his the said Samuel Hutchison, Jr., pro-rata share or part of the money received by them the said Roberts and Palmatary, in consideration of the sale and assignment of said judgment as made by them according to the respective amounts paid by them. 11— For that the Chancellor did not decide that Samuel Roberts and Daniel Palmatary were trustees for Samuel Hutchison, Jr., for his pro-rata share or part of the sum of fifteen hundred and five dollars.and five cents, (1,505.05), the proceeds of the sale of the interest in the judgment assigned to Mary J. Bewley and Samuel Roberts and Daniel Palmatary. C. H. B. Day, for complainant below, appellant: Choses in action are property. 1 Bouvier’s Law Dictionary, page 227 ; Wharton’s Law Dictionary, page 142. Bonds and mortgages pass under the designation of goods and chattels. 2 Williams on executors. Sec. 4, 853, published by R. H. Small, 1841. 1 Peere Williams, page 267, anonymous; Ryall v. Rolle, 1 Atkyns, 176-182; 1 Bouvier’s Law Dictionary, 563; 1 Bouvier’s Law Dictionary, 224. Bonds were not assignable at common law, but are made so by the statutes of this State. An obligation given to two or more persons is joint, and suit must be brought by them jointly during their joint lives; after the the death of any of them the right accrues to the survivors and finally to the representatives of the last survivors so far as respects the enforcing the claim against the opposite party, and each is not a creditor for his separate share. Duke of York’s Laws, 12, Sep. 22, 1676, 210, 1682-1700; Colonial Laws, 52, between 1726-1736 ; Vol. 1, Delaware Laws, Chap. 49, 117; Hall’s Digest, 1829, 42; Code of 1852, title 9, Chap. 63, Sec. 8-9, 184-185; Survivency of action. Constitution of the State, 1792. Vol. 1, Delaware Laws, Article 6, Sec. 11; 41; Hall’s Digest, 1829, 224; Sec. 11; Constitution 1831, Article 6, Sec. 18, 35; Code of 1852, Chap. 105, 375 ; 2 Pothier on obligation, 56, 57-58; Wharton’s Law Dictionary, 103; Lane v. Staoey, 8 Allen, 41-41; Doolittte v. Dwight, et. al., 2 Metcalf, 561-563; Richardson et. al., v. Jones, et. al., 1 Iredell’s Eq,, 296; Haughton, et. al., v. Bayley, et. al., 9 Iredell Law, 337. Bond is contract. Every contract derives its effect from the intention of the parties that intention is expressed or inferred must be the ground and principle of every decision respecting its oper [472] ation and extent, and the grand object of consideration in every question with regard to its construction. [471] For the foregoing causes the appellent prays that the decree of the Chancellor be reversed. [472] 2 Pothier on obligation, 35, No. 5, 39; Story on contracts, Chap. 20, Sec. 633-634; Lord Arlington v. Merricke, 3 Saunder’s Reports, Star paging, 412; Liverpool Water Works v. Atkinson, 6 East Star, 508. By the terms of the condition of the bond as expressed therein as follows: Note this bond is given as further security as my endorser on certain judgment bonds and for the mutual benefit of each party named in the within obligation according to liability for me as surety. The obligees were joint owners of the bond and all monies received by sale and assignment or otherwise was the joint money of all of them according to their liability as endorser on certain bonds, and if one or more of them received from any source more than their proportionate part they were trustee or trustees for the others. It is immaterial whether it was the money of Mrs. Bewley, or Mr. Bewley or the money of a stranger, the doctrine of trusteeship applies. Any one or more of them could receive all or part, compromise the joint claim, release the debtor, anti their co-obligees would be bound by it. Any general principle may be modified by agreement. Dering v. Earl of Winchelsea, 1 Cox Ch., 318; Butler et. al., v. Bulkey, et. al., 13 Ohio State, 514; Tyus & Holmes v. De Jarnetts, 26 Ala., new series, 280; Brown v. Bay, 18, Ch. —., 2d series, Vol. ,102; Austin v. Hall, 13 Johnson, 286 ; Haughton v. Riley, 9 Iredell R., 347 ; Fitch & Buck v. Foreman, 14 Johnson, 172; 1 Selwyn’s Nisi Prius, 588; Scribner v. Adams, 73 Maine, 541-550; Goodman v. Northcutt Reporter, Vol. 24, No. 1; Doolittle v. Dwight et. al., administrator, 2 Met., 561; Law of obligation, 474; 1848, 1849, Ind. Reports, 318. George V. Massey and N. B. Smithers for respondents. If there is any .Equity in the Complainant’s case, it must arise fr.om the right to Contribution or from Contract. [473] I. (1) Contribution is an equitable right independent of Contract, and occurs when two or more persons are subject to a common burden and one bears more than his share thereof. (2) It is not essential to this right that the instrument by which each is bound should be one and the same, but the duty must arise out of the same subject matter and be part of the same transaction. 2 Spence Equity Jurisdiction, 844; Cope v. Twynan, 1 Turner & Russel, 426; 12 Eng. Ch. It is manifest therefore that the doctrine of Contribution cannot apply, for the transactions creating the liability of the sureties were wholly distinct, and there never was any common burden. II. There is no right growing out of contract or agreement, either express or implied, from the taking of the bond. (1) What is the condition ? That the obligees shall share the money paid by John H. Dewley. He has paid none to the defendants. The complainant alone has been benefited by receiving anything from him. (2) The bond given .to the three was for “further security.” This necessarily implies that the original securities should out-stand and remain for .the benefit of the several sureties. All the sureties acted upon this understanding. (3) It is still further indicated by the words “ for the mutual benefit of each party according to liability.” [474] (4) The manifest reason for giving the bond was, that inasmuch as there was no power to compel the creditors to place their liens, it was determined that a single lien should be created by one bond, given to the three, each preserving his several rights and liability as to his separate suretyship. (5) The complainant acted upon this Understanding in taking, his assignment from Foxwell. (6) If his present contention be just, he should have taken the assignment of the bond of John Hutchison to all the sureties, legal plaintiffs, instead of to himself alone. This was contemporaneous with the entry of the judgment and was the only thing that ever passed from Bewley to any of the sureties. (7) The dealing between Mary J. Bewley and the defendants was a sale by them to her of their rights severally, in and to the money to be received from John H. Bewley, and a simple substitution. Any right is assignable in equity. 7 Paige, 76. Grubb, J. The facts as proved and admitted are these: The complainant, Samuel Hutchinson, Jr., in 1873 became surety for John H. Bewley to Tilghman Foxwell on a judgment bond for the payment of $1,000. Samuel Roberts, one of the defendants, in the same year became surety for said Bewley to John Numbers on a similar bond for the payment of $1,000; and David Palmatary, the other defendant, in 1877 became surety for Bewley to William Sharp on another judgment bond for the payment of $700. These several liabilities were totally distinct, arising from different instruments and out of separate transactions, having no connection with or relation to each other. On October 12, 1878, said Bewley executed his judgment bond to said Hutchinson, Roberts, and Palmatary, conditioned for the payment with interest, of the sum of $1,950. Written in the body of the bond, [475] and as part of the condition thereof, were these words: “Note. This bond is given as further security as my indorser on certain, judgment bonds, and for the mutual benefit of each party named in the within obligation according to liability for me as surety.” On this bond judgment was entered October 14,1878, in favor of the obligees his said sureties. The above specified three judgment bonds comprised all the liabilities of Bewley for which the complainant or defendants were his sureties. On the same 14th day of October, 1878, Bewley, made an assignment to Samuel Hutchinson, Jr., the complainant, for his own use, of a judgment at his (Bewley’s) suit against one John Hutchinson, which he received, as he admits in his bill, and as part of the liability for which he was bound as surety. Afterwards the said sureties of Bewley paid in full the several sums of money, respectively, for which they were respectively bound as sureties as follows: On December 10, 1881, Palmatary paid Sharp $875, the then amount of his liability, and took an assignment of the judgment of Sharp against Bewley to his own use. On December 12, 1881, Roberts paid to Numbers $630.05, the then amount of his liability as surety. On July 13, 1882, Hutchinson paid Fox well $1,291.83, the then amount of his liability as surety. On December 12,1881, Mary J. Bewley, wife of said John H. Bewley, paid to Roberts $630.05, and in consideration thereof received from him an assignment, at her risk of collection, of his share and interest in the judgment of Hutchinson, Roberts and Palmatary against Bewley. On the same day Mrs. Bewley also paid to Palmatary $875, the amount which he had paid to Sharp, and, in consideration thereof, received from him a like assignment and also an assignment, at her risk, of the judgment which Sharp had entered against Bewley, and assigned to Palmatary, under the statute in that behalf. Hutchinson has never made any assignment of his share or interest in said judgment of himself, Roberts, and Palmatary against Bewley. The money paid by Mrs. Bewley to Palmatary and Roberts for their respective interests in the said judgment was not the money of her husband ; but her own [476] sole and exclusive property and separate estate. Mrs. Bewley became their assignee of said interests with the knowledge and consent of her husband. It is upon this state of facts that the complainant founded his bill, and prayed for relief in the court below, wherein he sought a decree requiring the defendants to pay to him a pro rata share, according to the condition of the bond of Bewley to him, Roberts, and Palmatary, of the said sums of money received by the defendants, respectively, from Mrs. Bewley as the purchaser and assignee of their respective interests in the said bond and judgment thereon. If the complainant is entitled to receive such pro rata share of said moneys, his right thereto must be derived through the said bond given by Bewley as further surety to Hutchinson, Roberts, and Palmatary as his sureties aforesaid. It is clear that he cannot be so entitled upon the equitable principle of contribution among individuals subject to a common burden, and where one bears more than his just share thereof. It cannot be maintained that the operation or effect of this bond was to make those co-sureties who, before its execution, were respectively several sureties to separate •creditors of Bewley for different liabilities arising out of totally distinct transactions. By virtue of the bond they became co-obligees of Bewley, but they did not thereby become co-sureties for him to each of his said separate bond creditors, and as such jointly bound to each for the payment of Bewley’s several and distinct liabilities to them respectively. As a matter of fact, Hutchinson was nevhr liable as co-surety for the payment of the liabilities of Bewley, for which Roberts and Palmatary were, respectively, several suretiesjqmd has never borne or contributed anything as his share of their respective burdens as such sureties. It is manifest, therefore, that neither^the relation or the obligation of co-sureties existed between the complainant and defendants, and hence that the equitable doctrine of contribution among sureties is not applicable in this instance; so that the complainant’s right (if he have any) to the relief sought by his bill must^spring from some contract or agree [477] ment, express or implied, found in the bond from Bewley to him and his co-obligees. The evident purpose and meaning of this bond was to secure to each of the obligees the reimbursement by Bewley of such sum as each would pay, respectively, in discharge of his several liability as Bewley’s separate surety; the aggregate sum therein conditioned to be paid to be distributed pro rata according to such libility of each surety. Each of said obligees was therefore entitled to receive his several and distinct pro rata share of the said sum when the same was paid by Bewley or in his ■ behalf. Consequently there was a right in each to have Bewley’s promise to pay such pro rata share, according to the terms and condition of his bond, voluntarily fulfilled or appropriately enforced ; and this right or chose in action might, in equity, be sold and assigned by each of the obligees respectively. This principle is so well settled that it is unnecessary to cite authorities in its support. But there is nothing in the condition of the bond or elsewhere, so far as the evidence of record discloses, which entitles the complainant, or any of the obligees, to receive from either of his co-obligees any share or portion of the proceeds of the sale and assignment by the letter of his separate interest in the bond or the judgment thereon. The right of each obligee was, under the facts proven in this case, to receive merely his pro rata share of what would be actually paid by Bewley, or in his behalf, in discharge of the condition of his bond. Therefore the principle question and the controlling inquiry in this case is: Has the whole or any part of the aggregate snm conditioned to be paid in his bond actually been paid to one or both of the defendants by Bewley himself, or by his wife, or any other person for him or in his behalf? It is certain that Bewley himself has not paid said sum ; for he is shown to have been insolvent ever since the execution of the bond, and, consequently, unable to pay the same or any portion thereof. Nor is it alleged or. contended by the complainant that the defendants have received anything for or on account of Bewley’s obligation under said bond, from any person other than his [478] wife to whom they sold and assigned their respective interests therein. Therefore it merely remains to be considered whether or not Mrs. Bewley has, at Mr. Bewley’s instance, or in his behalf, paid to the defendants, or either of them, any portion of said sum, and thereby discharged, pro tanto, Bewley’s obligation to pay the same. It is not claimed by the complainant that the moneys paid by Mrs. Bewley are to be regarded as a credit on account of said sum, and as operating as a satisfaction and extinguishment pro tanto of Bewleys’s said obligation. The complainant himself expressly alleges that Mrs. Bewley was the purchaser and assignee of the defendants’ respective interests in the bond and judgment thereon. He himself has actually made his case entirely and absolutely to rest upon his allegation and proofs, and to depend upon the theory that the defendants were vendors, and Mrs. Bewley a purchaser in ter own name, with her own sole and separate funds. He has therefore recognized her as the vendee and assignee of the defendants’ respective interests in the bond and judgment thereon, and of their right to have Bewley’s obligation thereunder enforced; and he is accordingly estopped to maintain the contrary. He nowhere alleges or proves that she purchased the defendants’ said interest with the intention and purpose of discharging, pro tanto, her husband’s said obligation. He nowhere even suggests that such was her intention or purpose. There is no affirmative proof that such was the case. Indeed, there is no evidence whatsoever which furnishes reasonable ground for even such an inference. On the contrary, the circumstances attending the entire transaction negative that inference. Taken in connection with the other facts of record, the formal assignments to Mrs. Bewley by the defendants warrant the reasonable presumption that neither she nor they understood, intended, or desired that her purchase of their interests should operate as an absolute discharge pro tanto of her husband’s obligation ; otherwise her proper and probable course would have been to have the defendants accept and receipt for the money paid by her as a partial payment of the judgment, and not assign their interests [479] therein, and accept it as the purchase money therefor. In short, the assignments imply the intention and purpose on the part of both Mrs. Bewley and the defendants that the obligation of Bewley under his bond and judgment should not thereby be extinguished, but that their interests therein should be preserved and continued in her as their assignee. With this understanding, and in consideration thereof, she paid her money, and became their assignee with the knowledge and consent of her husband. With this understanding they received it. With the same understanding, and subject thereto, presumably, the complainant must—in fact actually does— claim his alleged pro rata share thereof; for his bill discloses that he claims such share of it qua purchase money for, and not as money paid in discharge of, a part of Bewley’s obligation. Under the statutory law of this State Mrs. Bewley may lawfully possess, enjoy, and invest her own sole and seperate personal property; and her legal and equitable rights and intererts therein will be preserved and protected. The complainant has not shown any right on his part to require or call upon Mrs. Bewley either to pay or to purchase for his benefit any portion of her husband’s said obligation. Nor has he shown that any portion of said obligation has been paid .to her by her husband, or by any other person in his behalf. It does not, therefore, appear that the complainant has alleged or proved that said obligation has yet been discharged and extinguished, in whole or in part, by any payment of money or other thing, either to the defendants or to Mrs. Bewley as their assignee. Consequently the defendants could not properly be decreed trustees for the complainant, as prayed by him in his bill, as to any pro rata share of the purchase money paid by Mrs. Bewley as the consideration for their said assignments to her. Hence the decree of the •Chancellor dismissing the complainant’s bill ought to be affirmed.