after that time, the horse passed by exchange from defendant to plaintiff, and by exchange the horse afterward passed to one Philbrick, and from him to one Hodgdon. Hill then took the horse on his mortgage from Hodgdon, and sold the horse on the mortgage for $100, at an auction sale June 2, 1862; one Sawyer being the purchaser. Hodgdon soon afterward bought the horse of Sawyer and paid him $100.

The defendant, plaintiff, Philbrick and Hodgdon were not aware of the existence of the mortgage, until Hill took the horse from Hodgdon. Upon demand made by Hodgdon, Philbrick paid him $100, and upon demand made by Philbrick, plaintiff paid him $100, plaintiff made demand on defendant, and he refused to pay him anything. This suit was brought within six years of the sale on the mortgage, and the payment made by plaintiff to Philbrick, but more than six years after the contract of exchange between plaintiff and defendant. Two questions were reserved: First, can assumpsit for money paid, or had and received, be maintained? Secondly, is plaintiff's claim barred by the statute of limitations?

SMITH, J.-When the defendant exchanged horses with the plaintiff, he impliedly warranted the title to the horse given by him in exchange, and the defendant thereby became answerable to the plaintiff, in case the title proved defective, whether the defendant knew the defect of his title or not: 1 Par. on Con. 4th Ed. 457-8; 2 Kent's Com. 478. This implied warranty is not confined to the vender's right to sell, but is, in substance, a warranty that his title is perfect, and free from all liens and incumbrances. See Dresser v. Ainsworth, 9 Barbour 619. The plaintiff, having paid Philbrick, who paid Hodgdon, who paid the amount requisite to relieve the property from the mortgage, is entitled, as against the defendant, to be regarded as having himself discharged the incumbrance. The property could not have been relieved from the mortgage without the payment; the payment, therefore, was not voluntary, but compulsory. See GROse, J., in Exall v. Partridge, 8 Term 308, p. 311; WILDE, J., in Gleason v. Dyke, 22 Pick. 390, p. 393-4. The plaintiff has been compelled to pay money, which the defendant ought to have paid; and which, as between plaintiff and defendant, the defendant was primarily liable to pay. A request may be implied, "if money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved him by himself paying the amount;" I Ch. Pl. 13th Am. Ed. 350, 351; 2 Green. Ev., § 114. It is upon the ground of an implied request that sureties are allowed to maintain a count for money paid against their principals. Hunt v. Amidon, 4 Hill (N. Y.) 345, is an authority to the point, that the vendor of incumbered property is liable, in a count for money paid to the purchaser, who is compelled to discharge the incumbrance in order to retain the property. See, also, Ticonic Bank v. Smiley, 27 Me. 225; Exall v. Partridge, 8 Term 308; McIntyre v. Ward, 18 Vt. 434; Kearney v. Tanner, 17 Serg. & Rawle 94; Francisco v. Wright, 2 Gilman (Ill.) 691, may, perhaps, be regarded as an au

thority favorable to the defendant. Our conclusion is that the plaintiff may maintain the count for money paid; and that the statute of limitations is not a bar, because the cause of action did not accrue till the money was paid. It is unnecessary to consider whether the other count can be maintained. Case discharged.1

ii. Contribution.

I. CONTRACTORS.

CHIPMAN v. MORRILL & WEBSTER.

20 CAL. 131.-1862.

FIELD, C. J., delivered the opinion of the court. NORTON, J., concurring. The property of the plaintiff was sold under execution to satisfy a judgment recovered against the plaintiff and the defendants, and this action is brought to enforce payment from the defendants of their proportionate charge. The questions for determination arise upon the pleadings. The papers read on the motion for a new trial we cannot look into, as there is no appeal from the order denying the motion. The complaint sets forth that in December, 1853, the plaintiff and the defendants purchased certain real estate situated in Alameda county, and gave to the vendor, in part payment for the same, their joint promissory note for $11,666, secured by a mortgage upon the property; that the plaintiff by the purchase became the owner of one undivided half of the premises, and each of the defendants became the owner of one undivided fourth; that the note was not paid, and that suit was commenced for the foreclosure of the mortgage, in which judgment was recovered against the plaintiff and the defendants for $11,666, and a decree entered directing the sale of the premises for the satisfaction of the judgment; that under the decree the mortgaged premises were sold, and after the application of the proceeds to the payment of the amount due upon the judgment, there remained a deficiency of $8,040; that, for this deficiency, and the percentage, interest and costs an execution was issued on the Ist of July, 1856, and under it, on the 30th of the same month, property of the plaintiff was sold for the sum of $12,000, and the amount applied to the satisfaction of the deficiency and interest, percentage and costs; that the deficiency was due from the plaintiff and defendants in the same proportions between themselves, as they were the purchasers and owners of the premises; that is, one-half from the plaintiff, and one-fourth from each of the defendants; but as the whole amount was paid by the plaintiff, the defendants are bound to make contribution to him in proportion to their interests. Then follows a prayer for judgment that each defendant be required to pay

For other applications of the principle, see Missouri Pac. Ry. v. Crowell Co., 51 Nebr. 293 (1897); Loomis v. Lehigh Valley R. R., 208 N. Y. 312 (1913).

the plaintiff the sum of $3,000, with interest from July 30, 1856, and for such other and further relief as to equity shall seem meet.

To this complaint, the defendant, Webster, demurred on various grounds, and among others, on the ground that there was a misjoinder of parties, because the cause of action was several against each of the defendants, and on the ground that it appeared that more than two years had elapsed from the time the cause of action accrued before the suit was commenced. The court sustained a demurrer, and the plaintiff declining to amend his complaint, final judgment was entered thereon. The defendant, Morrill, answered, denying, to use the language of his answer, "the greater part of the allegations of the complaint," without saying what those allegations were, and setting up, or rather attempting to do so, the statute of limitations and a discharge under the insolvent law of the state. The plaintiff, instead of demurring to the defective answer, filed a replication to it, denying the bar of the statute and the discharge in insolvency. The case was then submitted upon the pleadings. Upon them the court gave judgment for the defendant. It is from these two judgments, one in favor of the defendant, Webster, on the demurrer, and the other in favor of the defendant, Morrill, on the pleadings, that the appeal is taken. The appellant, in his argument of the appeal, takes two positions: First, that the action is one in equity to enforce a contribution from two or three obligors, to which the statute does not create a bar until after the lapse of four years (Act of April 22, 1850, defining the time for commencing civil actions, § 19); and second, that if the action be regarded as depending upon contract, that such contract is founded upon an instrument in writing, and to the action the statute, in consequence, fixes a like limitation of four years.

I. In support of the first position, the appellant cites various authorities upon the doctrine of contributions as between co-sureties, to the effect that such doctrine depends more upon a principle of equity than upon contract. Such is undoubtedly the case as between co-sureties, and the principle is, that where there is a common liability, equality of burthen is equity. Courts of equity, therefore, naturally took jurisdiction of cases of contribution where one surety had paid more than his just proportion. But the equitable doctrine, in progress of time, became so well established that parties were presumed to enter into contracts of suretyship upon its knowledge; and consequently, upon a mutual understanding that if the principal failed, each would be bound to share with the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to enforce contribution between the sureties, proceeding on the principle that from their joint undertaking there was an implied promise on the part of each surety to contribute his share, if necessary, to make up the common loss. Craythorne v. Swinburne, 14 Ves. 164; Sansdale's Administrators and Heirs v. Cox, 7 Mon. 403; Campbell v. Mesier, 4 Johns. Ch. 339; 8 Am. Dec. 570; I Madd. 236; Fletcher v. Grover, 11 N. H. 369; 28 Am. Dec. 359. This jurisdiction of the common-law courts did not, however, impair the concurrent jurisdic

tion of equity. Indeed, in many cases, especially where the sureties were numerous, and some of them insolvent, or where some of the sureties had died, courts of equity were alone adequate to afford a complete remedy. Wright v. Hunter, 5 Ves. 194; Wayland v. Tucker, 4 Gratt. 268; 50 Am. Dec. 76; Couch v. Terry's Adm'rs, 12 Ala. 228.

It is also true that the doctrine of contribution applies equally between those who are original co-contractors; that is, between those who are jointly bound on their own account (not being co-partners), as it does between those who are co-sureties; that is, jointly bound to answer for the debt or default of another. Thus, if a note were given for the cost of a partition wall by the owners of the adjoining premises, between which the wall was constructed, and one of the parties should pay the entire amount of the note, or more than his proportionate part, he could claim a contribution from the other. Campbell v. Mesier, 4 Johns. Ch. 335.

But the present case is not one for contribution between parties who have sustained a common loss upon a common liability. The note of the plaintiff and defendants, upon which the judgment was rendered, was given upon the purchase of real estate in which the parties took separate and distinct interests-the plaintiff one undivided half, and each of the defendants one undivided fourth, and between themselves the obligation of each was to pay for his respective interest. In giving their joint note for the whole amount of the purchase money, each party was principal for the amount of his own interest, and co-surety for the remaining interests. Thus, the plaintiff was principal for one-half of the purchase money and co-surety with Webster for one-fourth of the same for Morrill, and co-surety with Morrill for one-fourth for Webster. Goodall v. Wentworth, 20 Me. 322. When, therefore, the plaintiff paid the entire amount of the judgment recovered upon the note-or what is the same thing, when the proceeds of the property of the plaintiff sold under execution were applied to such payment-he became entitled to maintain an action against the defendants for moneys paid on their account. The demands which he could then assert were several in their character. They were demands not for contribution, but for reimbursement of moneys paid. The action should, therefore, have been against the defendants separately, upon the assumpsit, which the law implies, where a surety is compelled to advance money for his principal. Parker v. Ellis, 2 Sandf. 223; Odlin v. Greenleaf, 3 N. H. 270; Murice v. Hefferman, 13 Johns. 59; Lapham v. Barnes, 2 Vt. 213; Frazier v. Goode, 3 Rich. 199; Babcock v. Hubbard, 2 Conn. 536; Ward v. Henry, 5 Conn. 596; 13 Am. Dec. 119. Judgment affirmed.

GOLSEN v. BRAND.

75 ILL. 148.-1874.

MR. JUSTICE SHELDON.-This was an action of assumpsit, brought by Brand against Golsen, for contribution. Otto Hartung and Ida Hartung, his wife, made their promissory note, bearing date February 1, 1873, payable six months after date, with ten per cent. interest, to Jacob Keller. Before the delivery of the note to Keller, Golsen and Brand, at the instance of the maker, Hartung, and on requirement of the payee, wrote their names in blank upon the back of the note, Golsen writing his first; and on the 26th day of July, 1873, Otto Hartung, having previously gone into bankruptcy, Brand paid the note to Keller, and afterward brought this action against Golsen, to recover one-half of the amount so paid. He recovered in the court below, and Golsen appealed.

The obligation which Golsen and Brand assumed by writing their names upon the back of the note, was, under the decisions in this state, that of guarantors. No question is made in this respect, but, inasmuch as the proof shows that Golsen and Brand made the indorsements of their names at different times, not in the presence of each other, and without any agreement or concert between themselves in the matter, it is claimed by appellant that the parties entered into the guarantees they made, severally, and that there is no liability to contribution; that to enforce contribution, the parties must have been joint guarantors. Such a claim is without any legal support. It was enough that the parties were co-guarantors; they were not required to be otherwise joint guarantors. The right to contribution does not arise out of any contract or agreement between co-sureties to indemnify each other, but on the principle of equity, which courts of law enforce, that where two persons are subject to a common burden, it shall be borne equally between them. It is well settled that different sureties occupy toward each other the relation of cosureties, and that contribution may be enforced between them, although they may have become bound jointly, or severally, by different instruments, at different times, and without the knowledge of each other, provided that the obligations into which they enter are for the same engagement and for the same principal, and it does not appear that one obligation was intended to be secondary or collateral. to the others. It is sufficient for the right to claim contribution, that it appears that the parties were under obligation to pay the same debt as sureties for a third person. These principles find support in the following, among other authorities: Norton v. Coons, 3 Denio, 132; Armitage v. Pulver, 37 N. Y. 494; Warren v. Morrison, 3 Allen 567; Dering v. Earl of Winchelsea, I Lead. Cas. Eq. 131; s. c. I Cox's Cases 318; s. c. 2 B. & P. 270; Burge on Suretyship 384-5; Breckenridge v. Taylor, 5 Dana 112; 1 Story's Eq. Ju., sec.