
    Green vs. Mann.
    TJnder equitable pleadings in a claim case, the following facts,- in brief, were alleged: A lot of land was sold to one Green and one Johnson jointly, half of the purchase money being paid in cash, and a joint note being given for the balance. Green made the entire cash payment, which was his full proportion of the indebtedness. The land was conveyed to them jointly, and they afterwards divided it between themselves, each taking from the other a conveyance to the part assigned to him. The note for the deferred payment was sued, a joint judgment was recovered, and the execution was levied on that portion of the land assigned to Johnson in the division. Had it been sold for what it was reasonably worth, and what it would have brought at a fair sale, it would have satisfied the execution, the full amount of which was legally and equitably chargeable to Johnson. It was not fairly'sold, because it was agreed between the vendor and Johnson that the former should bid it off for the benefit of the latter, who should have time to redeem it, in consequence of which agreement, and the representations of the vendor to,others, persons attending the sales were deterred from bidding, and the property was sold for less than half its value and less than the amount of the execution. A homestead was set apart in the porlion of the land held by Green, and to a levy of the fi. fa. his wife interposed a claim for herself and minor children. The evidence was conflicting:
    
      Held, that the real point to be settled was whether the vendor, by his dealings with Johnson, deprived Green of the right and power of subjecting Johnson’s property to the payment of the balance due on the execution, and whether he did so with the knowledge tbat Green had already paid his proportionate part of the debt,- and that the land had been divided between him and Johnson for the purpose of severing their joint interest and fixing the liability of each of them as between themselves as to the payment of this execution debt, and whether, by any of his contracts with Johnson, to which Green was not a party, the vendor so depressed the sale of the land that it failed to bring a sufficient amount to satisfy the demand he held against them. If such are the facts, Green would be discharged from the liability.
    
      (a.) It was error to so charge as to withdraw from the consideration of the jury all right and interest which Green, and the claimant under him, had in the appropriation of the portion of the land assigned to Johnson, and to make it liable for the payment of this execution, without recourse upon him, or to so charge as to prevent the jury from considering evidence tending to show a purpose on the part of the vendor and Johnson to divert from its proper application the proceeds arising from a fair sale of the land, in fraud of the rights of Green.
    (6.) Joint debtors have a right of contribution which may be enforced like that of co-sureties, and if the creditor so acted as to place the property of one of the joint debtors beyond the reach of the other, he would be responsible to the latter for the injury done by such wrongful diversion; and this injury may be set up in a claim case, as a discharge, at least to the extent of the damage done, as well as by an action for damages.
    (e.) If Green is not already a party, he may be made such, as may also his co-debtor, Johnson, and all the rights of the parties may be determined on this proceeding, or Green nrght set up his defence by affidavit of illegality.
    June 2, 1886.
    Debtor and Creditor. Levy and Sale. Actions. Principal and Surety. Fraud. Claims. Parties. Before W. K. Moore, Esq., Judge pro kao vice. Gordon Superior Court. August Term, 1885.
    Reported in the decision.
    J. A. Jervis ; Dabney & Fouche' ; W. C. Glenn, for plaintiff in error.
    T. 0. Milner; R. J. McOamy; McCutchen & Shumate, for defendant.
   Hall, Justice.

' With the claim, the party making it set up equitable grounds of relief, and converted the ordinary proceeding at law substantially into a bill in equity. The case made was that claimant’s husband, Green, and J. M. Johnson purchased jointly of the plaintiff in execution, Mann, a tract of land for the sum of $5,000, one-half cash and the other oil time; that Green made the cash payment and joined Johnson in a note for the balance of the purchase money Mann conveyed the premises to them jointly and they afterwards divided them between themselves, each taking from the other a conveyance for the part assigned to him. After the maturity of the note given for the purchase money, a suit was instituted thereon against both the makers, which resulted in a judgment against them jointly; the execution issuing on this judgment was levied on the portion of the land which, in the division, was assigned to Johnson, and when sold under this levy, it brought a very inadequate price, less than one-half its value; had it been sold for what it was reasonably worth and what it would have brought at a fair sale, it would have satisfied the execution, the full amount of which, both legally and equitably, was chargeable to Johnson, Green having paid his portion of the joint indebtedness for the purchase of the land. But it was not fairly sold, as alleged, -because by an arrangement between Johnson and Mann it was agreed that the latter should bid it off for the benefit of the former, who was to have time to redeem it; that in consequence of this agreement and the representations of Mann to others, persons attending the sale were deterred from bidding, which otherwise they would have donp’, and' made the property bring, if not a fair price, at least enough to have satisfied the execution, A homestead Out of Green’s part of the land was set apart to his family, and hence the wife interpos.ed this claim, not only for herself, but for her minor children; the husband was not made a party to this equitable proceeding, otherwise than he appears to be such as a defendant in the execution.

Under the charge of the court and its various rulings, the property was found subject, and the claimant moved for a new trial on a number of grounds, which was refused. She thereupon excepted to the judgment overruling this motion and brought the case here on writ of error.

It is unnecessary to go at length into the’ many questions raised by this record, as the determination of those on which the case must turn will, for present purposes, dispose of it. There was certainly evidence to sustain the claim set up to relief from this judgment debt, and there was likewise testimony that the jury might have deemed sufficient to rebut it, and had the finding rested solely on the evidence, we might not have felt authorized to interfere with the discretion of the court in refusing to disturb the verdict. Such, however, is not the character of the claimant’s complaint; she insists that the judge erred in several of his charges to the jury upon points vital to her case, and thereby deprived her of rights to which, under the law, she was entitled, and especially that there was error in the instructions given the jury, particularly in ■those set out in the 6th, 8th, 9th and 10th grounds of the motion for a new trial, as follows:

(6.) The court' erred in this charge to the jury: “ If you find that Mann had a contract with Johnson to favor Johnson any way, the court charges you that the making of such contract ox agreement could not be fraudulent as to Johnson,, defendant, or to Green, claimant, who is here insisting ihefi.fa. was satisfied as to Johnson, and being satisfied as to him, is satisfied as to her husband, who was jointly liable for the payment of this debt. I know of no rule of law or policy which forbids a plaintiff vn.fi. fa. from making a contract to favor the debtor, and such contracts, if made and published by the plaintiff or debtor, and even if it had the effect to depress the bidding, would not give tho debtor, or those claiming under him, the right to attack the sale.”

(8.) The court erred in charging the jury, at the request of plaintiff’s counsel, the same being unauthorized by the evidence, “If you find that Mann, before the sale, had promised Johnson to buy in the land if it did not go over $4,000, and give him his own time to redeem it, or anything to that effect, Johnson and Mann had the right to modify or change the contract in any respect they saw proper after the sale, and if they did make another contract after the sale, fixing the rights of each of them, this Writing did away with the previous verbal contract and the writing determined,- and is the sole, measure of the rights of the parties.” This charge was wrong for Green; a joint debtor had some rights in the property.

(9.) The court erred in charging, “Neither the defendant, Green, nor the claimant has or can have any rights growing out of the contract between Mann and Johnson greater or different from what Johnson himself had under said contract.”

(10.) The court erred in charging, “ If you find that the contract was made between Mann and Johnson, as testified to by Johnson, to the effect that Mann was to bid off the property for Johnson at a stipulated price, and hold it and give Johnson his own time to redeem the same, I charge you that Mann and Johnson had the right to make such a contract, and the making thereof would be no fraud on Green’s rights, and if you find that Mann and Johnson, or either of them, simply told Reeves, before the sale, of the fact that such contract was made, without more, and that on the hearing of that fact, of his own accord, declined to bid for the land, this of itself would not constitute a fraud on Green, or entitle him or claimant to any redi;ess against Mann in this case.” The court had no right to express or intimate its opinion xxpon what had or had not been proved, or the weight of the evidence.

The leading purpose of these several instructions and the effect they had upon the case would seem to be to withdraw from the consideration of the jury all right and interest which the defendant, Green, and the claimant under him, had in the appropriation of the portion of the land assigned his co-defendant, Johnson, and to make it liable for the payment of the execution with which it was primai’ily chargeable, without recourse upon him under the law. They also prevented the jury from considering the facts testified to as evidence of a purpose, on the part of Mann and his alleged confederate, to divert from its proper application the proceeds arising from a fair sale of the land in fraud of the rights of the defendant, Green. The real point to be settled was, did Mann, by~ his dealings with Johnson, deprive Green of the right and power of subjecting Johnson’s property to the payment of the balance due on this execution, and did he do that with a knowledge that Green had already paid his proportionate part of the debt, and that the land had been divided between him and Johnson, for the purpose of severing their joint interest, and fixing the liability of each of them, as between themselves, as to the payment of this execution deht? Did he, by any of his contracts with Johnson, to which Green was no party, so depress the sale of the land that it failed to bring a sufficient amount to satisfy the demand he held against them ? If such are the facts, and they shall be so found by the jury, we think there can be no doubt of Green’s discharge from this liability. No reason occurs to us, in that event, why the altered relation growing out of these various transactions was not, in fact, though not technically perhaps, that of principal a.nd surety between Johnson and Green, and why Green would not be entitled to call to his aid any principle of law oí equity which would discharge a surety under like circumstances from his obligation to the debt. There can be no doubt of the existence of the right of contribution between joint debtors (Code, §3132), and by the act of 1871 (Code, §3599), it is expressly provided that when judgments have been obtained against several persons, and one or more of them has paid more than his just proportion of the same, he or they may, by having such payment entered on the fi. fa. issued to enforce said judgment, have full power to control and use said fi. fa. as securities in fi. fa. control the game against principal or co-securities, and shall not be compelled as heretofore to sue the - co-4ebtors for the excess of payment on such judgment. Neel, receiver, vs. Morris, 73 Ga. R., 406. Now, had Green taken up this judgment, he would have had the right to go upon Johnson under the facts proved for its full amount, and it would seem logically to follow, that had the plaintiff in the same done any act, by which the property of Johnson was placed beyond the reach of Green, he would be responsible to Green for so diverting his co-debtor’s property to his wrong and inj ury. Any interference with his rights would give him an action against the wrong-doer, and there is no reason why this should not entitle the injured party to defend against a claim, as well as to his action for damage thereto by the misconduct of the holder of such claim. Beyond controversy, where the relation of principal and surety exists, either by contract or operation of law, any act of the creditor, either before or after judgment against the principal which injures the surety of increases his risk, or exposes him to greater liability, will discharge him (Code, §2154 and citations); and why, upon analogous principles, standing upon the same footing of reason and justice, such conduct upon the part of a creditor should not discharge a co-debtor under the circumstances said to exist here, at least to the extent of the actual loss occasioned by it, we are unable to understand. It cannot be true, therefore, as the jury were instructed, that neither Green nor the-claimant who succeeds to a part of his rights can have any rights growing out of the contract between Mann and Johnson greater or different from what Johnson himself had under said contract, for the rights claimed by them existed independently of and previously to that contract, and they -only resorted to it to show the effect it had in impairing or destroying those rights. That in reason and law it was competent to appeal to it, and to bring it before the court for their relief against the' claim pressing on them, We think has been sufficiently shown.

If Green is not already a party to this proceeding, he can, by amendment, be made a party with the complainant; as he has not parted with all interest in the land by its being set apart as a homestead for his family, and is still the owner of the fee, subject to this charge, he raay, if he sees proper, avail himself of his defence to this levy and attempted sale either by affidavit,of illegality to the execution or by becoming a party to this proceeding, as above stated, which, inasmuch as all the parties in interest may in t]iis manner be brought before the court, including his co-debtor, Johnson,, who may be joined with the plaintiff in execution-, we think, would be the preferable course. There is no other question in the case requiring special notice, and upon them we pass no judgment.

Judgment reversed.  