
    Thomas E. Screven v. William Joyner, Executor of Benjamin S. Screven, and others.
    On wbat principles and under what circumstances contribution will be allowed.— To entitle a plaintiff to contribution, he must show that his payment has removed a common burthen from the defendant and himself; and that defendant has received benefit from such payment. [*200]
    The testator devised a tract of land called “Jasper’s Barony,” to his sons, Benjamin and Thomas, and designated the portions of each ; a large amount of the purchase money being unpaid, the vendor filed his bill against the executors, and obtained a decree, charging the land with its payment; and by a subsequent decree, it was ordered to be sold: these decrees remained open, and were not enforced for many years ; meanwhjle the devisee, Benjamin sold his portion of the Barony, and his purchaser took and held possession, until he acquired a title under the statute of limitation; afterwards the former decrees were revived, and by order of the Court of Equity, the remaining portion of the Barony, being the share of Thomas, was sold to pay the purchase money ; on a- bill filed by Thomas against Benjamin, for contribution, Held, that as the lien of the vendor under the decrees in Equity, was lost and ended by the statute of limitation, the payment of the decree by Thomas, conferred no benefit on Benjamin, and consequently he was not liable to contribution. [*261]
    John Screven, who died in the year 1801, by his last will and testament directed that a large body of land containing eight thousand acres, and known by the name of “ Jasper’s Barony,” which he had recently purchased from Joseph Blake, should be divided by a certain line, specified in the will, into two separate tracts ; one of which, called the “ Upper Plantation,” containing six thousand acres, he devised to his son Thomas E. Screven, the present plaintiff, and the other, called the “ Lower Plantation,” containing two thousand acres, he devised to another son, Benjamin S. Screven, the testator of the present defendant William Joyner. The testator John Screven further directed, that, as there might be some parts of each of these plantations conveniently situated, which might be disposed of without injury to the residue, his executors should sell such parts, or as much thereof as might be necessary, and apply the moneys arising therefrom towards payment of the purchase money of the Barony, remaining due to Blake.
    In pursuance of these directions, the executors, within a *year or two after the death of the testator, sold portions of both the “Upper” and the “Lower Plantations,” and applied the proceeds towards the payment of Blake’s debt: and the devisees, Thomas E. Screven, (by his guardian, being himself at that time a minor,) and Benjamin S. Screven, went into possession of their respective portions of the residue.
    At the death of the testator, John Screven, a large amount of the purchase money of the Barony remained due to Blake ; and a bill being filed' by him against the executors, the Court of Equity, by a decretal order made in 1802, directed that the land should stand mortgaged for the payment. A second bill was filed by Blake, to revive and enforce the decretal order of 1802, and the Court, by ’a decree made thereon in 1806, ordered the land to be sold for the satisfaction of the debt. This decree was not carried into effect, but various payments were made by the executors up to the year 1825, at which-‘time there remained due the sum of $6,798 89, with interest thereon from 2d June, 1818, and Blake filed a third bill, to revive the decree of 1806, and to obtain a sale of the land for payment of the balance remaining due. To this bill the devisees of the Barony were made parties, and by a decree made in 1.827, and confirmed by the Court of Appeals, the whole of the land remaining in their possession, or in the possession of the executors, was ordered to be sold in conformity to the prayer of the bill.
    The only portions of the Barony then in possession of either the devisees or the executors, were, a plantation called “ Good Hope,” containing- about one thousand acres, part of the “Upper Plantation,” which remained in possession of the devisee, Thomas E. Screven, and a plantation called “Pilgrim’s Hope,” containing seven hundred and twenty-five acres, also part of the “ Upper Plantation,” which was then in the possession of Dr. Richard B. Screven. The Court of Appeals refused to order a sale of any other portions of the Barony ; but as it appeared that certain persons to whom portions of the Barony had been sold, were in possession claiming by adverse title, it was ordered that Blake should have leave to amend, or file a supplemental bill, making suc^ Persons ^parties. This was accordingly done, by a fourth bill, filed in 1828, against several person who had purchased parts of the “Upper Plantation” from the present plaintiff, Thomas E. Screven. In this last mentioned suit a decree was pronounced by Chancellor Haupeb,, in 1830, confirming the titles of some of the purchasers, and directing other portions of the land held by them to be sold, in conformity to the original decree.
    In the meantime, Thomas E. Screven, in 1827, filed the bill which involves the subject of the present appeal. This bill was filed against the executors, legatees and devisees of John Screven, to obtain an account of the administration of his estate, and to have the assets, if any, applied to the extinguishment of Blake’s debt, in ease of the plaintiff’s land, and to compel the defendant, William Joyner, executor of Benjamin S. Screven, who was then deceased, and the other devisees and legatees of John Screven, to contribute for the relief of the plaintiff. The matters of account being referred to the Commissioner, that officer reported that a balance of $23,497 72 was due by Richard B. Screven, one of the executors, upon his administration of the assets which had come to his hands ; that the said Richard B. Screven was also liable, in case the assets were insufficient, to refund a pecuniary legacy of £1,000, which he had received payment in the year 1803 ; and that he had in his possession a .bond of John Posey, the husband of one of the female legatees, the condition of which was to refund a legacy to his wife, of which he had received payment, and on which bond there remained due' a balance of $-; all of which sums, the Commissioner reported, as applicable to the payment of the debt due to Blake, prior to, and in ease of any and every part of the Barony. In January, 1830, the case came on for hearing before Chancellor Habjpee, upon the bill, answers and exceptions to the report; and a decree was rendered, in which amongst other things, the report of the Commissioner was confirmed, and the executor, Richard B. Screven, ordered to pay over the balance due by him, or so much thereof as might be necessary, and to refund this legacy of £1,000, if requisite, for tbe purpose of extinguishing Blake’s debt, *and exonerating the plaintiff’s land : and Posey’s bond was diretted to be assigned fend delivered to the plaintiff, for the same purpose
    In relation to the liability of the estate of Benjamin S. Screven to contribute for the relief of the plaintiff, the decree is as follows : “With respect to the claim against the estate of Benjamin S. Screven for contribution, the case was very imperfectly made out. The claim is only in respect of the portion of Jasper’s Barony received by him. There is no claim against him as executor. Now, as I understand it, by the decree of 1827, in the case of Blake and Screven, to which Benjamin S. Screven was a party, the whole of the Barony, including as well that part devised to Benjamin S. Screven as that devised to the plaintiff is directed to be sold. It would seem then, that the estate of Benjamin S. Screven is precisely in the same -situation with the plaintiff, and has the same claim to relief against the executor and residuary legatees. 'If the plaintiff’s portion of the land should be separately proceeded against, or sold, leaving untouched Benjamin S. Screven’s part, I suppose the plaintiff would be entitled to contribution ; not, however, until all the rest of the estate were exhausted.- — The bill states that Benjamin S. Screven parted with that part of the Barony which he received. There was no proof on this subject, however, nor any admission in the answer of the executor, Mr. Joyner. If he sold the land, it may still be liable 'in the hands of the vendees. If, as has occurred in the case of the plaintiff, he has sold to persons whose title has been perfected by the statute of limitations, a different question might arise. I can conclude nothing on this part of the case as it at present appears. The plaintiff may, if he thinks proper, have a further reference to enquire and report whether any, and what contribution ought to be made by the estate of Benjamin S. Screven. On such reference the ease may be fully made out.”
    Subsequent to, and soon after this decree, the plantations called G-ood Hope and Pilgrim’s Hope, heretofore mentioned, were sold by Blake under the decree of 1827 ; and an appeal having been made from the decree pronounced by Chancellor Harper in 1830, on Blake’s supplemental bill, the Court *of Appeals, by a decree made in 1831, declared the whole of Jasper’s Barony subject to the lien of Blake’s several decrees, except as to such parts as had been held adversely by purchasers a sufficient length of time to be protected by the statute of limitations: and as no one of the purchasers from Thomas E. Screven, who were parties to that bill, were in that situation, the whole of the lands purchased by them for him, were declared liable to Blake’s debt, and ordered to be sold accordingly. Whereupon the said lands were sold, or arrangements made for the payment of Blake in exoneration of said lands, by Thomas E. Screven, who was liable over to his vendees.
    A reference having been taken to the Commissioner, conformably to the decree of Chancellor Harper, he reported that Benjamin S. Screven sold the residue of the “ Lower Plantation” not disposed of by the executors, consisting of eleven hundred acres, to Josiah W. Allston, for the price of $17,000 ; that this sale was made in 1804, and that the purchaser, or those claiming under him, having ever since been in quiet and undisturbed possession, were, according to the decree on Blake’s supplemental bill, as recognised by the Court of Appeals, protected against Blake’s lien, by the statute of limitations. The Commissioner further reported, that every portion of the “TJpper Plantation,” which had been devised to Thomas E. Screven, had been sold either by the executors, or by Blake under his several decrees, or had in some manner been ultimately subjected to the payment of the debt due to Blake: and finally, that the executor, Richard B. Screven, had wasted the assets 'which came to his hands, and was either utterly insolvent, or nearly so ; and that the plaintiffs could have no reasonable prospect of relief either - from the balance due by his executor, or from the legacy of £1000, which he had been ordered to refund.
    It appeared, however, by several of the papers, and particularly by Chancellor Harper’s decree, that the plaintiff received from the executor, Richard B. Screven, eleven negroes, being the price of the plantation called “ Piigrim’s Hope,” which was purchased by that executor; of which negroes the plaintiff has never been deprived, nor have *they ever been subjected in his hands, to the payment of Blake’s debt. And although “ Pilgrim’s Hope” has since been sold by Blake, and Richard B. Screven may consequently have a claim upon the plaintiff for the value of these negroes ; yet such claim can only be a set-off pro tanto, to the large sums-due by Richard B. Screven; and the plaintiff can never, therefore, be deprived of his portion, saved to him out of. the-devise of Jasper’s Barony.
    Upon the coming in of the Commissioner’s report, the cause came on for hearing upon the equity reserved, before Chancellor Johnston, who, after argument, ordered and decreed, that the estate of Benjamin S. Screven should contribute for the relief of the plaintiff, and directed a reference to the Commissioner to ascertain and report the amount of such contribution.
    No reasons were assigned in the order for this decision. The defendant, William Joyner, appealed therefrom; and moved that the said order may be reversed for the following reasons.
    1. That the devises to the plaintiff and defendant’s testator are distinct specific devises, and neither of the devisees is entitled to call upon the other to contribute for the removal of incumbrances specifically affecting the land devised to himself.
    2. That the land devised to the defendant’s testator, being protected against Blake, is equally protected against all persons claiming under him, and cannot be subjected to a new liability to the plaintiff, by reason of his payment of his debt due to Blake.
    3. That the land devised to the defendant’s testator not being directly subject to Blake’s lien, cannot be made indirectly liable by reason of the liability of the plaintiff’s land.
    4. That if the land devised to the defendant’s testator is liable to the plaintiff, the remedy of the plaintiff is against the land, or the persons in possession, and not against the estate of the defendant’s testator.
    5. That the defendant’s testator having sold the land devised to him, and received Proceeds so long ago as *1804, more than twenty years previous to the filing of the plaintiff’s bill, is protected by lapse of time and the statute of limitations, from all liability to refund, .either for the benefit of the devisees or legatees, or for the benefit of creditors.
    6. That the assets of the estate being originally sufficient for the payment of debts, and the deficiency of assets which forms the foundation of the plaintiff’s claim for contribution, being occasioned by a devastavit of the executor, committed long subsequent to the period at which the defendant’s testator sold and received the proceeds of the lands devised to him, the estate of the latter is not- bound to refund, independently of the protection afforded by the statute of limitations.
    Y. That the plaintiff has not made out a case which entitles him to call upon the estate of the defendant’s testator for contribution. _
    
      Bailey, for the appellant,
    contended, that the defendant’s testator, if liable at all, must be so as terre-tenant and devisee; his only liability is in regard to his land. The ground of contribution is equality of benefits and burthens ; Harris v. Ferguson, 2 Bailey, 39Y ; and that the payment or loss by the party asking relief, has conferred a benefit, or relieved the other party from some burthen ; 1 Cox’s Ch. Cases, 318 ; 1 Eq. Ca. Ab. contribution, (a) 13; Show. P. C. 18, 19. Unless therefore the plaintiff, in satisfying Blake’s debt, has conferred a benefit on the^ testator, or relieved his estate from some burthen, there is : contribution. No benefit has been conferred — the land wa^ Blake’s debt, when the payments were made; for, having , in the occupation of a bona fide purchaser, he acquired statute of limitations — M'Bea v. Smith, 2 Bay, 338 ; ani this land, this doctrine was settled in Blake v. Heyward, S Blake could not pursue the money recovered by Benjamin^ the lands sold — his only remedy was against the land ; how'll be, he could not follow the money, after the land became exempt? statute of limitations, 3 Coke Bep. (a) 14. *Tbe plaintiff might have been protected against Blake’s decree, so far as regards Benjamin’s proportion of the purchase money, by reason of .his laches and neglect to enforce it; and this may, even yet, afford him ground for relief against Blake, but furnishes none against the defendant. The deficiency here is not for want of assets, but caused by a devastavit of the executor ; the whole estate was liable for Blake’s debt, and if contribution is to be made, are not all the devisees liable ? But the plaintiff has received part payment, by the negroes received from the executor, on a sale of “ Pilgrim’s Hope.” And where a legatee has received part of his legacy, and the executor wastes the balance of the estate, there can be no contribution; 1 P. W. 494; Lupton v. Lupton, 2 John. Oh. Bep. 626.
    
      R. B. Smith, Attorney-General for the plaintiff.
    The decree of 1802, fixing the liability of the lands, and that of 1806, ordering them to be sold, established the right of contribution. By the decree of 1806, the whole estate of John Screven was subjected to Blake’s debt: 1st, the Barony lands — 2d, the funds appointed by the will; and 3dly, the residue of the real and personal estate. Benj. S. Screven was executor, and a party to these decrees, and could he now deny his liability for this debt, or that he is bound by these decrees ? Benjamin being liable for the debt, and a party to the decree which ordered Thomas’ land to be sold for its payment, becomes liable for contribution. Where land subject to an incumbrance is sold to several, and the debt is exacted of one of them, he is entitled to contribution from the others; Carthew, 3. And where the lands of the ancestor is bound for his debts, which are paid by one of his devisees, the others must contribute; Clowes v. Dickerson, 5 John. Ch. •Rep. 240; Select Cases in Chancery, 24; 4 John. Ch. Rep. 531. If all the land had been alienated, could not Blake have compelled them to refund and pay his debt? The property of the devisees stands as surety for the executor — Benjamin and Thomas may be considered such, and may be subrogated to the rights of the creditor; 11 Yes. 22; 2 Yernon 608; 2 John. Ch. Rep. 555; 4 lb. 123. The *devastavit of the executor must prejudice both devisees alike; and where one legatee has received his legacy in full, it is not clear that he may not be compelled to refund, 2 Yes-. 193. — An executor who has voluntarily paid a legacy cannot compel the legatee to refund, but if the executor prove insolvent, the other legatees may have contribution, 1 Ch. Ca. 133, 136, 248; 2 lb. 132.
    
      Pettigru, in reply.
    The bill of 1802 was against the executors of John Screven; Benjamin and Thomas were infants, and their answers not sworn to, consequently are not answers, and they not parties. That part of the decree which relates to contribution, is not therefore obligatory.. But can a creditor have such a decree as this hanging over an estate ? He is entitled to a decree to be paid in due course of administration. Blake could have extended only one-half of Thomas’ land. Francis’ Maxims, 15, sustains Lord Coke’s doctrine. If one legatee refund, then the other must; but the decree of 1827 imposes a lien only on the lands in possession of the devisees; no liability exists against the lands of Benjamin — the payment of the decree confers no benefit, and there is, therefore, no ground for contribution. Lands devised are liable for the payment of debts, after the personal estate is exhausted; but if a creditor stands by, as Blake has done, and permits the personalty to be wasted, has he any right to pursue the land ?
   O’Neall, J.

In the view which we have taken of this case, it will only be necessary to enquire whether the defendant’s testator is liable to contribution on' account of Blake’s decree.

The liability to contribute is the result of a general equity founded on the equality of “burthens and benefits;” Harris v. Ferguson, 2 Bail. 397. To establish the right of contribution, the plaintiff must show that his payment has removed a common burthen from the shoulders of himself and the defendant, and that they are each benefitted by it. This occurs in all cases of payments made by one surety, on the debt for which several are boiind — a common burthen *is removed and a common benefit received. But the doctrine of contribution is not at all founded on contract; it applies to cases where the liability, it is true, arises out of a contract, to which the plaintiff and defendant were parties; it is not, however, necessary that they should be bound by one contract; it may arise out of several, if they have thereby incurred a common liability. So, too, it applies to cases where the liability does not, in any shape, arise out ¿of a contract, as when a common property, held by purchase, descent^ or devise, is liable to the payment of a sum of money, and one is compelled to pay the whole, he shall have contribution from bis co-tenant. In cases where a benefit is derived from the destruction of the property of one for the preservation of another; when there is a community of risk, there may be contribution. But to make out such a claim, the benefit must be shown to have been the necessary and proper consequence of the loss. For if the benefit is uncertain, or the loss was not the means of preservation, there can be no contribution. 1 Eq. Ca. Ab Tit. Con. & Aver. (A) 13.

The right of the complainant to call on the defendant for contribution, depends not upon any act or personal liability of his testator. If he is liable at all, it must be that the land devised to him was liable, as well as that of the complainant, to the lien of Blake’s decree at the time it was enforced and the complainant’s land sold under it. To make out either the community of burthen or benefit, the decree must have had an equal lien on both, and both must have had the benefit of the removal of the lien. —The decree, as a subsisting lien, constitutes the only liability to which the land of either was subject. If that was ended as to one, and not as. to the other, there was no liability on the former, to be removed by the latter. Originally both were affected alike by the general lien. A lapse of near twenty years, and a conveyance of his land by the defendant’s testator, may have changed the operation of that lien, and may have ended the defendant’s liability, while that of the complainant.remained unimpaired. It is necessary, therefore, to enquire whether the land *devised to the defendant’s' testator, was liable to sale under Blake’s decree, at the time the complainant was compelled to pay it? In 1804, the defendant’s.testator sold to Josias W. Alston : his title accompanied by an actual adverse possession, was complete and legal, against the lien of Blake’s decree, after the expiration of five years. M'Rea v. Smith, 2 Bay, 339. In 1809 or,1810, the land was protected from the lien of Blake’s decree, and therefore', as to it, it was and must be considered as then ended. The payment by the complainant was between 1821 and 1832, a period of at least seventeen years after the land devised to the defendant’s testator was exonerated by the operation of the statute of limitations, from the lien of Blake’s decree.

I agree with the complainant’s counsel that the liability of the defendant to contribute, depends upon the question whether Blake could have recovered against him, at the time he did against the complainant. We have seen that the lien of the decree was gone in 1810 ; in 1823, Blake filed his bill to make the complainant’s land liable; Blake could not therefore then have made the land devised to the defendant’s testator liable under the decree. Could he have had any recovery on account of his sale ? If he could ever have recovered any thing on that account, it must have been on the ground that the money received by the defendant’s testator, was to-be regarded as received to the use of the creditor under, the decree. This in equity might have made the defendant a constructive trustee for the creditor. But this constructive trust would not prevent the operation of the statute of limitations; the defendant in such a case holds in his own right and adversely to that of all others. From the time, therefore, that the creditor knew of his sale, the statute commenced to run, and as the claim for the account in Equity is analogous to the action for money had and received at law, it would run, out in four years from that time. In 1806 this fact was not only known to Blake, but is made the ground of exempting that part of the Barony from sale, under the decree then made. In 1810, then, the defendant’s testator would have been protected by the statute of limitation from any recovery on the part of Blake.

*Neither the land nor the defendant’s testator being liable at the time the complainant was compelled to pay the decree, it follows that the complainant has no right to claim a contribution from the defendant, on account of a payment which did not, and could not benefit it.

It may be, and I think it probable, that if the complainant had resisted payment of Blake’s decree, on the ground that by his laches the land of the defendant’s testator was exonerated from its lien, that the complainant would only have been held liable for his aliquot proportion of the debt. For in 3 Coke’s Rep. 14, it is said, “Note reader, when it is said before and often in our own books, that if one purchaser be only extended for the whole debt, that he shall have contribution ; it is not thereby intended, that the others shall give or allow him anything by way of contribution ; but it ought to be intended, that the party who is only extended for the whole, may, by audita querela or scire facias, as the case requires, defeat the execution, and thereby he shall be restored to all the mesne profits, and compel the conusee to sue execution of the whole land. So, in this manner, every one shall be contributory, hoc est, the land of every terre-tenant shall be equally extended. ” In this State, the creditor would, at law, have the right to make his money by &fi. fa. out of any of the land subject to the lien of his judgment. And if the land of one purchaser, heir or devisee was sold, he would have a clear right in equity, to contribution from the others whose land was equally subject to the lien. If the act or laches of the creditor defeats that equity, it would seem that equity ought to prevent him from enforcing his legal advantage, by holding the party only liable to him for so much of the debt as would be properly charged on his land as its proportionate share. In other words, he ought to be protected against the judgment, on paying so much towards it as he would have been in equity liable to contribute, if the land which is exempted by the act or laches of the creditor, had been sold for the payment of the whole debt. Be this however as it may, the complainant, by paying a debt which the defendant’s testator was not in any event liable to.pay, cannot acquire any rights against him.

*It-was contended that the fact that B. S. Screven was the executor as well as the devisee of John Screven, (deceased) and that he was a party to the decrees, made him liable. It appears that in 1807 he terminated his relation of executor to his testator’s estate, by fully accounting for the funds in his hands and removing from the State. Since that time he has not acted as executor, and there is no pretence that he is liable for anything in that character. If he is not liable to account as executor, the fact that he was the executor, cannot have any effect upon him in any other character in which he may be called on for an account.

He was a party to the decree obtained by Blake, and if upon it any action could be sustained against him, it might make him liable. But there is no recovery against him for a debt or demand, nor is there any sum ascertained by the decree, to be in his hands, applicable to its payment. The decrees of 1802 and 1806, merely establish the debt against Ms testator’s estate; and in consequence of their legal effect, make the whole of the estate of the testator liable for their payment; no personal liability is thereby cast on the defendant’s testator, and of course, the fact that he was a party, will not deprive him of the defence now relied on.

It is therefore ordered and decreed, that so much of Chancellor Harper’s decree as directs a reference to ascertain whether any, and what contribution, ought to be made by the estate of Benjamin S. Screven; and the decree of Chancellor Johnston, upon the report of the Commissioner, directing contribution to be made by the estate of Benjamin S. Screven, deceased, for the relief of the complainant, be reversed.

Johnson and Harper, Js., concurred.  