Though a creditor may exact full payment of the whole debt, by levy of execution or otherwise, from one only of those severally or jointly, or jointly and severally, liable to him, and cannot be compelled to confine his resort to each to that amount which as between one another each debtor ought to pay, an obligor who is compelled by the creditor to pay in excess of the share, proper as between himself and his co-debtors, is entitled to contribution or indemnification from the other obligors according to his contract or relation with them. The obligors before entering into the obligation may have made a special contract with one another as to the shares in which the liability should ultimately be borne by them.11 If they made no such contract it will be inferred that their shares are in proportion to their interest in the matter. Accordingly if the transaction was wholly for the benefit of one of the obligors and the others were sureties, the former should discharge the whole debt, and if any of the latter have been forced to pay anything upon the obligation it can be recovered by him from the principal debtor. As between obligors who are equally interested or equally without interest the duty to bear the burden is equal, and contribution will be enforced in favor of one who has paid more than his proportion against others who have paid less.12 But in the case of a partner who has paid personally a partnership liability, contribution will not be enforced against his co-partners, since on settlement of the whole partnership the balance might be against the partner who has made the payment.13 If a debtor jointly liable with
Ids. Co., 34 App. D. C. 460; Hogan v. Sullivan, 79 Vt. 36,84 Atl. 234; Brown-field v. Holland, 63 Wash. 86, 114 Pac. 890. But such a statute docs not prevent the surviving obligors also from being jointly liable for the whole debt. Lee v. Blodgct, 214 Man. 374, 102 N. E. 67.
5 Pickorsgill v. Lahens, 16 Wall. 140, 144, 21 L, Ed. 119.
6 Ibid. See also Cos v. Maddux, 72 Ind. 206; Waters v. Riley, 2 H. ft G. 305; Barnes v. Brown, 130 N. Y. 372; Hengst's App., 24 Pa. 413.
7 Towers v Moor, 2 Vera. 98; Simpson p. Vaughan, 2 Atk. 31; Pick-ergill v Lahens, 15 Wall. 140,21L. Ed. 119; Olmsted v. Olmsted, 38 Conn. 309, Davis v. Van Buren, 72 N. Y. 687; Richardson v. Draper, 87 N. Y. 337; Douglass p. Ferris, 138 N. Y. 192, 207, 33 N. £. 1041, 34 Am. St. Rep. 436.
8 In re Burdick, 79 N. Y. Misc. 167, 140 N. Y. S. 682.
9 Sumner v. Powell, 2 Mer. 30; Clarke v. Bickers, 14 Sim. 639; Wilmer c. Currey, 2 De G. ft Sm. 347; Jones v. Beach, 2 De G. M. ft G. 886, 889; Other v. Iveson, 3 Drew. 177, 182; Bereaford v. Browning, L. R. 20 Eq. 664, 669. See also Richardson v. Horton, 6 Beav. 185.
10Bank of Topeka v. Eaton, 95 Fed. 355 (Mass. decision on Kansas Statute); Gummer v. Mairs, 140 Cal. 535, 74 Pac. 26 (if all the obligors receive some benefit from the consideration); Powell v. Kettelle, 6 111. 491; Hudelson v. Armstrong, 70 Ind. 99; Rose v. Williams, 5 Kans. 483; Mays v. Cockmm, 57 Tex. 352; Bergstrom v. State, 58 Tex. 92; Donnerberg v Oppenheimer, 16 Wash. 290, 46 Pac. 254.
11 See for instances of such contracts, Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; Crane v. Bayley, 126 Mich. 323, 85 N. W. 874; Annitage v. Pulver, 37 N. Y. 494.
12 Marsack v. Webber, 6 H. ft N. 1; Lowe v. Dixon, 16 Q. B. D. 466; Comstock v. Potter, 191 Mich. 629, 168 K. W. 102; Allen v. Gamer, 45 Utah, 39, 143 Pac. 228; In re Koch's Estate, 148 Wis. 548, 134 N. W. 663. See also cases cited in this section, passim, and infra,Sec.Sec. 1277 el seq. As to right of subrogation see infra, 1271.
13 Brown v. Tapseott, 6 M. ft W. 119; Sedgwick v. Daniell, 2 H. ft N. 319; Pollard v. Stanton, 5 Ala. 461; De-Jamette v. McQueen, 31 Ala. 230, 68 Am. Deo. 164; Ross v. Cornell, 45 Cal. 133; Price v. Drew, 18 Fla. 670; Cross-ley p. Taylor, 83 Ind. 337; Lawrence v. Clark, 9 Dana, 267,35 Am. Dec. 133; Phillips v. Blatchford, 137 Mass. 510; Glynn v. Phetteplace, 26 Mich. 383; Cockrell v. Thompson, 85 Mo. 510;, Younglove v. Liebhardt, 13 Neb. 557, 14 N. W. 526; Harris v. Harris, 39 N. H. 45; Booth v. Farmers' etc. Bank, 74 N. Y. 228; Fulton's Appeal, 95 Pa. St. 323; Merriwether v. Hardeman, others dies, his estate remains liable to contribute what is equitably due to his co-debtors who discharge the obligation, in view of the original agreement of the debtors with one another, or of their respective interests.14
It has been frequently laid down that no right to contribution in favor of a joint debtor exists until actual payment by him of more than the share of the whole debt which, as between himself and those from whom he seeks contribution, he ought to pay;15 but where judgment has been rendered against a co-debtor for more than his share it seems that he may by an equitable proceeding in which the creditor is made a party have the other co-debtors compelled to pay their proper shares of the judgment.16
The right of two or more joint debtors to recover for an excessive amount paid by them is a joint right which they can enforce against a co-debtor in an action in which those who paid are all joined as plaintiffs, provided payment was made by them jointly;17 but for payments made severally by joint debtors, they must sue severally for contribution.18 The obligation of each joint debtor who has not paid his share to contribute to those who have paid more than their share is a several obligation;19 but resort may be had to a court of equity where the parties are numerous or the facts are complicated, and all persons from whom or to whom contribution is due may be joined as defendants.20 A joint debtor who has paid more than his share is not generally held entitled at law to enlarge the liability of some of the remaining joint debtors because others are insolvent;21 but in equity the insolvent debtors may be disregarded in making the calculation.22 So parties bound to contribute who are not within the jurisdiction will not be regarded by a court of equity in the calculation; 23 and in some jurisdictions the equitable rule has been applied at law.24 The subject of contribution between cosureties is further considered in a later chapter.25 It may be added finally to avoid misapprehension, that no right of con-tribution exists between joint tort feasors who are in pari delicto.26
61 Tex. 436; Kendrick v. Tarbell, 27 Vt. S12; Tomlinson p. Nelson, 49 Wis. 679, 6 N. W. 366.
15 fit parte Snowdon, 17 Ch. D. 44; Gardner v. Brooke, 11897] 2 Ir. Rep. 6; Washington v. Norwood, 128 Ala. 383, 30 So. 405; Coroett v. Holcomb, 23 Ky. Law Rep. 34, 62 So. 477; Backus v. Coyne, 45 Mich. 584, 8 N. W. 694; Yore c. Yore, 240 Mo. 451, 144 S. W. 847;Gourdin v. Trenholm, 25 S. C. 362. But giving negotiable paper by one debtor if accepted by the creditor as absolute payment gives a right to contribution. Bayne v. Greiner's Est.,
118 Minn. 350, 136 N. ,W. 1041, and see infra, Sec.Sec. 1277 et seq.
16 Wolmershausen v. Gullick, [1893) 2 Ch. 514. See infra, Sec.1275.
17 Dussol v. Bruguiere, 50 Cal. 456; Clapp v. Rice, 15 Gray, 557, 77 Am. Dec. 387; Weeks v. Parsons, 176 Mass. 570, 58 N. E. 157; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98.
18 Kelby v. Steel, 5 Esp. 194; Graham v. Robertson, 2 T. R. 282; Birkley v. Presgravo, 1 East, 220, 226; Lombard v. Cobb, 14 Ma. 222; Fletcher v. Grover, 11 N. H. 368, 35 Am. Dec. 497; Pres-cott v. Newell, 39 Vt. 82.
19 Cowell v. Edwards, 2 B. & P. 268; Powell v. Matthis, 4 Ired. L. 83, 40 Am. Dec. 427; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98.