
    Horace Camp et al. v. Charles H. Bostwick.
    1. In an action by a creditor of a deceased person against the heirs, after the estate has been fully administered, the same defences may be made, as in an action against the personal representatives.
    2. The right to contribution among co-sureties is not founded on the contract of suretyship, but is based on an equity arising from the relation of co-sureties.
    3. The neglect of a creditor, whereby the estate of one surety is released,, under the statutes of limitation, from its direct liability, does not discharge a co-surety from his liability for the whole or any part of the debt.
    4. An estate so released from its direct liability to the creditor, is, nevertheless, liable to contribute to a co-surety who has paid more than his-moiety of the debt.
    5. The right of action for contribution among co-sureties accrues when-one has paid more than his proportion of their liability.
    Error to the court of common pleas of Portage countyBeserved in the district court.
    The original action was brought on the 29th of December,. 1866, by Charles IT. Bostwick, defendant in error, against Horace Camp and wife, and others, plaintiffs in error, to* compel them, as heirs at law of Abram Olmstead, to make-contribution as between co-sureties.
    
      The petition alleged that on the 29th day of April, 1856, said Olmstead and the plaintiff became bound as sureties for George B. Whittlesey to Hiram Giddings, in a joint and several promissory note for $500, payable, with ten per cent, interest, one year after that date. That in December, 1858, Olmstead died, leaving the defendants, his heirs at law, who received, as heirs from his estate, property, real and personal, more than sufficient to pay all debts and liabilities of the estate. That the administration of Qhnstead’s estate was finally settled on the 15th of December, 1859, without paying or providing for the payment of any part of Giddings’ claim. That in March, 1861, Whittlesey died, utterly insolvent, having paid and caused to be paid (at divers times) the sum of $273.98, on said note, leaving the balance due and unpaid. That on the 8th of May, 1863, plaintiff paid his moiety of said balance, to wit, $300, and, on the 19th of November, 1866, paid the further sum of $394.63, in full of a judgment recovered against him individually by Giddings, for the balance of said note.
    The petition contains a prayer for judgment against the defendants for one half the amount, so paid by the plaintiff, with interest, etc.
    To this petition the defendants demurred. The demurrer was overruled, and defendants excepted.
    The defendants then answered, as follows:
    1. General denial.
    2. That on the 11th day of December, 1858, the administrators of Olmstead, having qualified, gave due notice of their appointment, and on the 15th day of December, 1859, made final settlement of the estate. That no assets have since come into their hands. That no claim was ever presented to them, on account of said note, or any part thereof, for acceptance or payment; nor was any claim “ allowed ” by them, on account of said note. That no action was brought against the administrators within four years next after their appointment and qualification, or at any other time, by either said Giddings or the plaintiff. That the suit of (biddings against the plaintiff was commenced more than five years after the administrators of Olmstead were appointed and qualified, and after Giddings’ right of action against the estate had been barred by the statute of limitations. And that the payments made by the plaintiff to Giddings were voluntary, and not at the request, nor by the consent of either the defendants or the administrators of Olmstead, etc.
    No reply was made to the second defence.
    The cause was finally submitted to the court upon the pleadings and testimony. And the court found the facts stated in the petition to be true, and rendered judgment against the defendants for $412.50.
    The defendants moved for a new trial upon the grounds now assigned for error, which motion was overruled, and defendants excepted.
    A petition in error to reverse this judgment was filed in the district court of Portage county, and reserved for decision here.
    
      Hart & Reed for plaintiffs in error:
    1. At the time these payments were made by Bostwick, the estate of Olmstead was not liable to Giddings, the holder and owner of the note, for any sum whatever, and no claim could have been enforced by Giddings against said estate, or the heirs, for the reason that the same was barred by the statute of limitations, and Bostwick, in paying them, did not pay a debt for which the estate was liable. S. & C. 585, sec. 101; Ib. 610-614, secs. 227, 248; Administrator of Gilbert v. Administrator of Little, 2 Ohio St. 156; Brown et al. v. Anderson, Administratrix, 13 Mass. 201; Dawes, Judge, etc. v. Shedd et al., 15 Mass. 6; Thompson v. Brown et al., 16 Mass. 172.
    The case stands jn this wise: Bostwick has paid a note which Olmstead’s estate was not bound to pay, and which it could not be compelled to pay, and one, too, which he, Bostwick, need not have paid if he had made proper defence. And now, by this process, he claims that a dead thing has been revived.
    The principle is well-established that one who pays a debt for another, for which that other is not bound, cannot ask for contribution. The right to contribution is an equitable one. It is based upon the idea that the party asking it has paid a claim upon which both sureties were liable, and that by paying he has relieved the other from a burden. Or, in other words, it is upon the idea that both parties were liable, and that its payment by one discharges the other from a liability which, but for such payment, he would have to meet. In the case on hearing, Olmstead’s estate was not liable for the' debt. The payment by Bostwick did not relieve it of any burden, and did not confer any benefit. Russell v. Failer,. 1 Ohio St. 327; Skillen v. Merrill, 16 Mass. 40: Williamson’s Administrator v. Fees’ Administrator et al., 15 Ohio, 572; Wheatfield Tp. v. Brush Valley Tp., 25 Penn. St. 112.
    If we are right in the proposition that no person is entitled to contribution from another, unless he has paid a debt for-which that other is liable, then this cause is ended, and the judgment of the common pleas must be reversed.
    2. Looking further at‘this matter, we can conceive of no legal or equitable ground upon which Bostwick can base his-claim for contribution. As to the $300 which he paid on the 8th day of May, 1863, it is outlawed in a double sense. Not only was there no valid claim against Olmstead’s estate at the time he paid it, but what makes it still worse for him,, after having paid it he waited until more than four years more had gone by before he brought any suit against Olmstead’s estate, or these plaintiffs in error.
    Having paid the $300, there remained only Olmstead’s. share, and that was barred.
    It cannot be claimed that the rights of plaintiffs in error are prejudiced by the judgment recovered against Bostwick by Giddings in 1865, and which he paid. That was a suit against Bostwick alone. Plaintiffs in error were not parties-to it, and it has been repeatedly decided that no man can be bound or affected by a judgment to which he is not a party. Cox v. Hill et al., 3 Ohio, 409. Thompson v. Young, 2 Ohio, 334.
    3. Bostwick has no reason to complain of the rule which' «denies Mm contribution in this case. He wouM not in any event have been a sufferer but for his own negligence and laches.
    After the note to Giddings fell due he could have paid it any time within the four years, and while the Olmstead estate was still liable upon it, and then his right to contribution would have been unquestioned. It is well-established that one surety may, at any time after a debt is due, voluntarily pay it, and then compel his co-sureties to make contribution. Williams’ Administrator v. Williams' Administrator, 5 Ohio, 444; Skillen v. Merrill, 16 Mass. 40; Ide v. Churchill, 14 Ohio St. 373.
    If not desiring to pay the debt, he could bring his action against Whittlesey and Giddings, to compel the principal to pay the debt. This would bring all the parties before the court. All their rights and'liabilities could have been fixed and determined in the one suit, and in case the sureties were compelled to pay the debt, the right of contribution would have been fully established.
    If he saw fit to wait until the claim against Olmstead’s estate was barred, then when sued by Giddings he could have successfully defended against Olmstead’s share of the debt, under the authority of the doctrine laid down in the case of Ide v. Churchill, 14 Ohio St. 373, where it is held that if a creditor release one surety upon a note, the other shall in no event be made liable, for that share of the debt. The same doctrine is held in Shock v. Miller, 10 Penn. St. 401; Klinginsmith v. Klinginsmith’s Executor, 31 Penn. St. 460. See also Story’s Eq. Jur. sec. 325.
    It was the duty of Giddings to present that note to the administrators or heirs of Olmstead within the four years. He omitted or refused to do it. Bostwick was entitled to the benefit of this release of Olmstead’s estate. If he was unwilling to make defence himself, he could at least have notified plaintiffs in error, so as to permit them to come in and do it for themselves.
    Here are several ways in which defendant in erroA;ould have avoided any loss. He has refused to adopt any of them; has voluntarily waived his rights, and has paid a claim which neither Olmstead nor himself were under any obligations to meet.
    
      Conant c& Robinson for defendant in error:
    1. Bostwick and Olmstead being co-sureties, the positive release of Olmstead in his lifetime, or the release of his estate by Giddings, did not discharge Bostwick. from the payment of one-half the debt. See Shock v. Miller, 10 Penn. St. 401; Klinginsmith v. Klinginsmith, 31 Penn. St. 460.
    The above eases decide that Bostwick would not have been discharged from half, even though Giddings had released Olmstead’s estate by a paper wider his hand and seal, and that is all they do decade.
    
    2. The discharge of Olmstead’s estate by mere delay on the pant of Giddings did not release Bostwick from any portion of the debt.
    
    When Bostwick signed the note to Giddings he thereby promised to pay the whole amount to Giddings, at any time within fifteen years from its matwrity. He stipulated that his liability to pay the whole amount should extend for the period of fifteen years from the maturity of the note. It might extend for a longer time, but should at least go that far. It did not extend that far upon condition that both Whittlesey and Olmstead lived, but only on condition that he lived. Whittlesey and Olmstead died, and still by the 90th section of our administration law, S. & G. 583, and by Burgoyne v. The Life Insurance & Trust Co., 5 Ohio St. 586, he was held severally liable, even though the note was joint. Now if he was still severally liable for the debt, he was severally liable for the whole debt, and the rule of limitation by the death of Olmstead was not changed; neither was it changed by delay on the part of Giddings after Olmstead’s death, for Bostwick had stipulated that Giddings might delay up to the last day of fifteen years.
    Suppose that instead of death removing Whittlesey and Olmstead they had emigrated to the State of Illinois, where a right of action on 'a note is barred in six years, and had re* mained there until they had a good defence to the note in the hands of Giddings, would that have discharged Bostwick ? We think not. Bostwick could not have pleaded the discharge of Whittlesey and Olmstead as a good defence.. He had said his liability to pay should extend fifteen years.
    3. Again, Whittlesey being insolvent, Bostwick "was principal on half the note, and the estate was his surety, and the-estate was principal on the other half of the note, and Bostwich was its surety. Bostwick having paid the first half of the-note, the presumption is that he paid his own half, and that the half belonging to the estate to pay was still unsatisfied.
    4. If the principal on a note is discharged by mere delay of the holder that does not release the surety. Take the case put above where the principal removes to a State where the statute of limitations releases him ; the surety who remains would still be holden and the rights against him would be-unimpaired.
    5. The discharge of the Olmstead estate by the mere delay of Giddings did not release Bostwick from any portion of the-note. 4 S. & M. 165 ; 16 Ala. 465; 8 N. H. 389.
    6. The claim was a valid one in. the hands of Giddings,. and, therefore, this case does not come within the rule of this court, heretofore established, that if'one surety pay a void' clmm he cannot ask for contribution from a co-surety. Had Bostwick paid the note when he was under no obligation to pay, he could not recover here.
    7. When Bostwick paid the last half of the note, to wit:: Nov. 19, 1866, he had a right of action against the heirs. See-8 N. H. 389; 16 Ala. 465.
    As between Bostwick and the estate, upon the last half of ‘ the note, the estate was principal and- Bostwick its surety,, and Bostwick having been compelled to pay the debt of the estate, it seems to us that justice demands repayment on the part of the heirs. Had Olmstead removed from the State- and been discharged by a statutory bar, and then had Bostwick paid the debt and asked him for contribution, it occurs-to us that the defence that he was not bound to Giddings. would have been a lame one. The contract that the principal always makes with the surety is this: If the surety is obliged to pay the debt the principal will refund or reimburse. Olmstead said to Bostwiek when they signed the note for Whittlesey, “ as between you and me I will be principal on half the note, and you shall be my surety, and if you are ever obliged to pay my share I will repay you. Bostwiek replied, “All right, and I will be principal on the other half of the note, and you shall be my surety, and if you aro ever obliged to pay my share I will repay you.”
    Bostwiek proposes to hold Olmstead to his contract, and, having paid the debt of Olmstead, he asks his heirs to refund.
    8. His right of action accrued only when he paid more than his proportion. Parsons on Mercantile Law, 249; Smith on Mercantile Law, 586; Adams’ Equity, 573; 1 Parsons on Contracts ; 31 Ala. 505 ; 11 B. Monroe, 397.
    9. His right of action accrued November 19, 1866, and he brought his suit December 29, 1866.
    Bostwiek had no right of action during the four years spoken of, but did begin within one year from the time his ■debt fell due. S. & C. 610, secs. 227, 228, provides for a case of this sort. See also sec. 107.
    10. Heirs can be held liable for contribution. Fletcher v. Jackson, 23 Vt. 581; 1 Story’s Eq., sec. 497; 17 Mass. 464.
   McIlvaine, J.

The plaintiffs assign for error the following:

1. The court of common pleas erred in overruling the demurrer to the petition.

2. The court erred in rendering judgment in favor of defendant in error upon the pleadings. .

3. The facts stated in the second defence being admitted, judgment should have been for plaintiffs in error.

4. The court found in favor of defendant in error, when it should have found for plaintiffs in error.

I The findings of the court are contrary to the law and the facts.

Substantially the same questions of law arise upon the several assignments.

The original action was brought under favor of the 227th ,and following sections of the administration act (S. & C. 610, 611), providing for the commencement of actions against the heirs, etc., of deceased persons, after the settlement of the estate and after the expiration of the time limited for the commencement of actions against the personal representatives, etc., in cases where the right of action first accrues after the happening of those events.

Section 101 of the same act (S. & C. 585) provides, that no executor or administrator, after having given notice of his appointment, etc., shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond, etc. This provision, however, is subject to a modification in section 1 of the act of February 5, 1817 (S. & C. 611), “That any creditor of the estate of any deceased person, whose cause of action shall accrue, or shall have accrued, after the expiration of four years from the time that the executor or administrator of such estate shall give or shall have given bond according to law, and before such estate is fully administered, may commence and prosecute such action at any time within one year after the accruing of such cause of action and before such estate shall have been fully administered; and no cause of action against any executor or administrator shall be adjudged barred by lapse of time, until the expiration of one year from the accruing thereof.”

That the right of the action on the note, as against the estate of Ohnstead, was barred from and after the 11th day of December, 1862, cannot be doubted. And if Bostwick’s cause of action is founded on the note simply by subrogation to the rights of Giddings, it is also barred as against the heirs of Olmstead.

But this action was not founded on the note. The note was fully paid and satisfied by the payment of Giddings’ judgment by Bostwick, on the 19th of November, 1866. By that payment, however, a new cause of action accrued to Bostwick against the representatives of his deceased co-surety, founded upon a “ general equity,” which equalizes burdens and benefits among co-sureties. This new cause of action never did accrue to Giddings, and it first accrued to Bostwick only forty days before suit was commenced.

Bostwick was under no legal or equitable obligation to Olmsteadi’s estate to pay the Giddings note, during the four years of its administration.

A moral and equitable obligation to each other rested equally upon both the sureties, to pay a moiety of that debt, during the whole of that period, as they were each legally and equally bound to pay Giddings, not a moiety, but the whole of his claim.

And had the estate of Olmstead discharged its legal obligation to Giddings to pay the whole of the debt, and its moral obligation to Bostwick to pay a moiety, the unequal burden which Bostwick was afterward compelled to bear,, would not have raised an equity against its representatives.

The proposition, “ that the right to contribution is based on the principle, that both sureties were liable, and that the payment by one discharges the other from a liability which, but for the payment, the other would be bound to meet,” and “ that inasmuch as Olmstead’s estate was discharged by the statute of limitations before Bostwick paid the debt, it (the estate) was relieved of no burden and received no benefit from his payment” and, therefore, is not liable to contribute, cannot be maintained.

If the right of a co-surety to claim contribution rested upon the doctrine of subrogation to the rights of the creditor, the proposition might be true.

The doctrine of subrogation has its origin in the relation of principal and surety, whereby a surety who pays the debt of his principal is, in equity, substituted in the place of the-creditor, and is entitled to all the rights which the creditor may have against his principal. But the doctrine of contribution has its origin in the relation of co-sureties or other joint promisors in the same degree of obligation. It is not founded upon the contract of suretyship. (1 Ohio St. 327, and' 1 Cox, 318.) It is an equity which springs up at the time the relation of co-sureties is entered into, and ripens into a cause-of action when one surety pays more than his proportion of the debt. (4 Grattan, 268.) Erom this relation the common' law implies a promise to contribute in case of unequal payments by co-sureties. But equity resorts to no such fiction.. It equalizes burdens and recognizes and enforces the reasonable expectations of co-sureties because it is just and right in good morals, and not because of any supposed promise between them. This equity, having once arisen between co-sureties, this reasonable expectation that each will bear his share of the burden is, as it were, a vested right in each, and remains for his protection until he is released from all his liability in excess of his ratable share of the burden. Neither the creditor, the principal, the statute of limitations, nor the death of a party, can take it away. 11 N. II. 431; 4 Grattan, 387; 1 Met. 387-9; 17 Mass. 464; 3 Denio, 62; 13 S. &' E. 441; 16 Ala. 465 ; and 4 Greenleaf, 195.

It cannot be said that Bostwick voluntarily paid this debt, or any part of it. If he was legally liable to Giddings, his payments were compulsory, in a legal sense.

He was liable, by the terms of his contract, to pay the-whole debt if his principal failed to do so. And such was the obligation of Olmstead also. Whittlesey did not pay, but died utterly insolvent. The promise of Bostwick was in writing, and was binding for fifteen years under.our statute-of limitations, as to him.

Nor did the neglect of Giddings to bring his action against the estate of Whittlesey or the estate of Olmstead releaseBostwick from his liability for the whole debt. In Sibbley v. McAllaster (8 N. H. 389), the court say, “ It is very apparent, that if the principal die, and his estate is administered in the insolvent course, the creditor is under no obligation to present his claim to the commissioners, and procure what he-may from that estate. He has a right in such a case to look to the surety for the whole amount.” In Johnson v. Planters' Bank (4 S. & M. 165), the court say, “ A creditor is nob bound to active diligence against tbe principal to preserve tbe liability of the surety. If be merely remain passive, tbe liability of tbe surety is unimpaired. Neglect to present tbe claim to tbe administrator of tbe principal within tbe time prescribed by law does not discharge tbe surety.” The same rule is held in 11 N. H. 431, and 16 Ala. 465.

And if tbe neglect of tbe creditor, whereby tbe principal’s estate is released, will not discharge tbe liability of tbe surety, it follows, with greater reason, that like negligence, whereby one surety’s estate is released from direct liability to tbe principal, will not discharge its equitable obligations to a co-surety.

It is therefore clear that Bostwick was not a volunteer.

Nor was Bostwick barred by tbe statute of limitations from setting up and proving his payment of $300 on tbe 8th day of May, 1863. That sum was his own share of tbe debt, as between him and Olmstead’s estate. Its payment gave him no right for contribution, for, if tbe estate of Olmstead bad at any time afterward paid tbe balance, tbe condition of tbe sureties would have been in accordance with their equities.

Lord Eldon in Ex parte Gifford, 6 Ves. 805, says, “ that unless one surety should pay more than bis moiety, be would not pay enough to bring an assumpsit against the other.” And Parke, B., in Davies v. Humphreys, 6 M. & W. 152, says, If a surety pays a part of the debt only, and less than bis moiety, be cannot be entitled to call on bis co-surety, who might himself subsequently pay an equal or greater portion of the debt; in tbe former of which cases, such co-surety would have no contribution to pay, and in tbe latter be would have one to receive.”

Among co-sureties tbe right to demand contribution does not arise until one has paid more than his proportion of tbe common liability.

We find no substantial error in tbe record of tbe court of common pleas.

Judgment affirmed.

Scott, C.J., and Welch, White, and Day, JJ., concurred.  