
    BENJAMIN L. HOYT and AUGUSTUS W. FRANKLIN, as Administrators, etc., of BENEDICT W. FRANKLIN, Deceased, Appellants, v. HENRY TUTHILL and Others, Respondents.
    
      Contribution — an obligor may bing an action in equity to compel contributions from co-obligors — when the request of co-obligors to malee the payment need not be proved — release of one co-obligor does not release 'the others — if the action brought is an equitable one the tenyea/r statute of limitations applies.
    
    The plaintiffs’ intestate with five others purchased certain real estate and gave to their grantor their joint and several bond, together with a mortgage on. the said premises, to secure a portion of the purchase-price. In 1872,1878 and 1874 the plaintiffs’ intestate paid installments falling due upon the obligations and taxes and interest. January 8,1876, the premises were sold upon the foreclosure of the said mortgage and were purchased hy the plaintiffs’ intestate. This action was commenced in October, 1881, to compel all the other obligors, except one who had been released hy the deceased, to contribute their proportionate share of the amount which the deceased had been compelled to pay.
    
      Held, that although the liability of each defendant might have been enforced in a separate action at law, yet that the plaintiffs might, for the purpose of preventing a multiplicity qf actions, join all the co-obligors in a single action in equity.
    
      That it was not necessary for the plaintiffs to show that their intestate paid at the express request of the co-ohligors, or of either of them.
    That as the obligation to contribute was several in its nature the release of one of the obligors by the deceased did not release the others.
    That even if the plaintiffs’ intestate by the purchase of the property at the foreclosure sale became, as to it, a trustee for his co-ohligors, this fact furnished no defense to this action brought to compel contribution as to payments made by him prior to the time of such purchase.
    That as it was proper for the plaintiffs to bring an action in equity instead of at law, the ten and not the six years’ limitation applied, and that they were entitled to recover for payments made more than six years prior to the commencement of the action.
    Appeal from a judgment, entered on a decision made at tbe Yates Special Term on the trial of an action in equity.
    On the 27th day of December, 1870, Benedict W. Franklin (the plaintiffs’ intestate), Horatio W. Perkins, George B.. Page, E. Darwin Tuthill, Henry Tuthill and William H. Fox purchased jointly a lot of land, in the village of Penn Yan, from Samuel F. Curtis, agreeing to pay therefor $3,000, and received a warranty deed of the premises. Thereafter the grantees paid $500 of the purchase-price, and on the 31st day of December, 1870, they duly executed, acknowledged and delivered to Curtis their joint and several bond conditioned for the payment of $2,500, the balance of the purchase-price, “ in five equal annual payments from and after the 1st day of January, 1871,” and secured the payment thereof by a mortgage upon the premises.
    When the first payment of principal and interest, amounting to $675, fell due in January, 1872, Benedict W- Franklin paid it from his own individual funds, and the same is true of the payments which respectively became due in January, 1873, and January, 1874, amounting to $640 and $605 respectively. Failing to pay the installments of principal and interest, which by the terms of the bond and mortgage became due in January, 1875, an action of foreclosure was commenced by Murdock, the then owner of the bond and mortgage, in the month of November, 1875, in which action the said obligors, were each and every of them made parties defendant and served with process, and the premises were, January 8, 1876, sold under a judgment of foreclosure to the plaintiffs’ intestate. Franklin paid all the taxes and assessments levied on the premises down to and including the year 1875. The said Benedict "W. Franklin died intestate in December, 1877, and the plaintiffs were duly appointed and qualified as administrators of his estate. This action was commenced in October, 1881, to compel contribution from the defendants.
    
      M. A. Leary, Delos MoGvrdkj and B. W. Frcmldin, for the appellants.
    
      W. F. Cogswell, of counsel, for the respondents.
   Smith, P. J.:

The plaintiffs’ intestate, one of several obligors and mortgagors who were jointly and severally bound by the express terms of their obligation, having made payments in reduction of the mortgage debt, this action is brought against all th^ other obligors, except one who has been, released, to compel contribution.

The action is one of equitable cognizance, the enforcement of contribution in cases of this nature being a very important and beneficial exercise of equity jurisdicton. (Story’s Eq. Jur., §§ 483, 484, 485, and cases cited in notes.) All the persons liable are properly made parties in order that their several interests may be adjusted and the amounts for which they are respectively liable may be ascertained. Besides, although the liability of each defendant for his quota is several and may be enforced in an action at law (Cowell v. Edward, 2 B. & P., 268), yet where the co-obligors are numerous they may be joined in one action in equity to prevent multiplicity 'of suits. (Craythorne v. Swinburne, 14 Ves., 160; 3 Pomeroy on Eq. Jur., § 1418 and note [1], and cases there cited.)

For the purpose of establishing a right to compel contribution, it is not necessary for the plaintiff to show that he paid at the express request of the defendants, or either of them, provided the right is made out in other respects. If the defendants were equally liable for the debt with himself, contribution will be compelled upon the principle that equality is equity (Aspinwall v. Sacchi, 57 N. Y., 331), and no request from them is necessary, or if necessary a request will be implied.

The plaintiffs have brought themselves fully within these rules. Their testator paid certain installments on the joint bond and mortgage when they became due, and also taxes upon the premises, and the claim is that each of the defendants shall be compelled to contribute his share of the moneys so paid.

It is ui’ged by way of defense that the release of Mr. Perkins, one of the obligors, discharged the othei’S. But the contract or obligation to conti’ibute being several, one of several co-obligors may be released without discharging the others. (Pars. on Cont. [6th ed.], 34, 35.)

It is suggested, too, by the defendants’ counsel that the plaintiffs’ intestate by purehasing the mortgaged property at the foreclosui’e sale became a trustee for his co-obligors. We do not think it necessary to consider that question on this appeal. If the intestate became the trastee of his co-obligors, the bare fact is no defense to the claim for contribution in respect to payments made by him before he became trastee. It may be that' he or his representatives have received moneys in the use of the property, or as a profit in the purchase in which his co-obligors are entitled to share; but those .are questions that do not appear to have been gone into at the trial.

It is also contended for the defense that the action is barred by the statute of limitations. That depends on whether the six-year or the ten-year limitation applies. We have seen that an action at-law would lie against each of the obligox-s separately to recover his quota, and of coui’se such an action would be within the six-year statute. In general where there is a legal and an equitable remedy in respect to the same subject Inatter the latter is under the control of the saxpe statute bar as the foi’mer. (Borst v. Corey, 15 N. Y., 505; Rundle v. Allison, 34 id., 180.) But the statute bar applicable to equitable x-emedies will be applied whei’e the legal remedy is impex-fect (Rundle v. Allison, supra), or where the xdght sought to be enforced by the equitable x-emedy is not a mere incident of the right attainable at law, as was the ease in Borst v. Corey (supra), but is distinct fx’om and independent thereof and not within the cognizance of a coux-t of law. An instance of the latter class of actions is Scott v. Stebbins (27 Hun, 335; affirmed by the Court of Appeals, 91 N. Y., 605). In the present case it was necessary for the plaintiffs to x’esort to a court of equity, where alone all the parties could be brought into one action for the purpose of adjusting their respective interests and ascertaining the amount for which they are severally liable, and compelling contribution from each by one decree, tbns avoiding a multiplicity of suits. And if, as is suggested by tire defendants’ counsel, tbe plaintiffs’ intestate became a trustee for his co-obligors and an accounting is necessary to determine tbe equities of tbe respective parties, that circumstance of itself makes the case one of equitable cognizance exclusively. As tbe action was brought within ten years after the cause of action accrued it is not barred.

We think the judgment dismissing the complaint should be reversed and a new trial ordered, costs to abide event.

Present — Smith, P. J., ITardin and Barker, JJ.

Judgment reversed and a new trial ordered, costs to abide event.  