[Carter v. Fidelity & Deposit Company of Maryland.]

The bill as amended was demurred to, and the demurrers being overruled, this appeal is prosecuted to review that decree. The only demurrer insisted upon in argument here was interposed by Carter, one of the sureties upon one of the four bonds given on the 10th day of April, 1897, the penalty of which is $25,000. It is insisted by this demurrer, consisting of many grounds, that the bill is defective in failing to allege that taxcollector, Lott, converted money of the county subsequent to the 10th day of April, 1897, the date of the execution of demurrant's bond. The averment in the bill, in this respect, to repeat, is that "said Lott as taxcollector on the 1st day of July, 1897, defaulted in failing to pay over to the county of Mobile as required by law the sum of $12,309.54," etc. Proof of this fact we held in the Fidelity and Deposit Co. v. Mobile Co., (124 Ala. 146), was sufficient to authorize a judgment in favor of the county against the surety upon the tax-collector's bond, and that the claim by the surety that the default had in fact occurred prior to the execution of the bond was, if sufficient excuse, defensive matter. The allegation of the default of the principal alleged in the bill would have been sufficient if appellant had been sued by the county, and no good reason can be given why it should not be sufficient when sued by a surety, who has paid such default, for contribution. If the default of the principal occurred prior to the execution of the bond by appellant, that is matter of defense for him to invoke.

It is next insisted that the right to contribution is limited to the actual default of the principal and should not and cannot embrace the costs of the suit against the surety in which such default was established. It is doubtless true that when the defense of a suit by the creditor against a surety was needless or frivolous the costs of such suit cannot be included in the claim of the surety for contribution. He cannot, of course, claim for the consequences of his own wrong. Such was the case of Jones v. Jones, 16 Ala. 545, relied upon by appellant. The surety there was secured by a deed of trust to which he could have resorted for the payment

[Carter v. Fidelity & Deposit Company of Maryland.]

of the principal's default. It was needless for him to have suffered suit, having funds in his own hands cut of which he could have discharged the debt. While authorities are cited and expressions used in the opinion of the court in that case indicating that the surety can never claim contribution as to the costs and damages of a suit against him by the creditor, the decision to this extent was unnecessary and the reasons given therefor are not sound. It was said that the surety has the right to stand upon the terms of his contract which is limited to the payment of the principal's default, and that it was the duty of the surety to pay the debt, if just, when demanded by the creditor. It has been repeatedly held that the right to contribution does not depend on contract. "It is a principle of equity, having its foundation in natural justice, that when one discharges more than his just portion of a common burden another who has received the benefit ought to refund to him a ratable proportion."-Owen v. McGehee, 61 Ala. 440. And while it was the duty of the surety to pay the debt, if just, when demanded by the creditor, the duty rested equally upon the co-surety who was not sued. While it is true a surety is not bound to await the bringing of suit by the creditor in order to entitle him to contribution, we know of no rule which compels him to accept the amount claimed by the creditor as just and correct, nor of any rule which makes his determination of its validity or amount conclusive upon his co-surety. If the creditor having a claim against several sureties may select the one he wishes to sue, and the one sued is limited in his right of contribution to the actual default of the principal exclusive of the costs of suit, he can by his selection, to the extent of the costs of the suit, make a victim of the surety sued and thus make the common burden personal oppression. We think the true rule is that where the surety obtains any advantage from the suit, or where, although the resistence of the suit was unsuccessful, there was reasonable grounds of defense, if he acted as a prudent man would, in the light of facts and circumstances showing a probability of success in whole or in part, the surety sued should be entitled to include the costs and damages

Carter v. Fidelity & Deposit Company of Maryland.]

of the suit in his claim for contribution against his cosureties. His co-sureties ought not and cannot complain, for the burden of paying the debt rested equally upon them and they could have prevented suit or even stopped it after its commencement by paying the demand of the creditor. The extra liability for the costs and damages of suit, not frivolously nor neednessly defended, should not be imposed upon one of several equally bound at the caprice of the common creditor, any more than the payment of the debt itself. Particularly is this true where, as in the case in hand, the amount of the common liability is not necessarily the amount named in the bond, or instrument, but must have been ascertained by matter extraneous thereto.-3 Am. & Eng. Dec. in Equity, 171; 7 Am. & Eng. Ency. Law (2d ed.), 344; 1 Brandt on Suretyship, § 283. According to the averments of the bill, in consequence of the defense of the suit by complainant, the demand of the common creditor was reduced in the lower court from $23,062.51 to $13,797.69. The defense of the suit, therefore, was not only reasonable but was a manifest advantage to the other sureties, and we are not prepared to hold that the prosecution of the appeal to this court was unreasonable.

The contention that the bond upon which appellant, Carter, was surety was not a statutory bond is without merit. The bill clearly avers that Lott, as tax-collector, was required under the statutes to give the bond and that it was acted under by him. Therefore, although it may be subject to objection as to penalty, time of approval, etc., its stands by virtue of the statute in the place of the official bond, subject to all the remedies of a bond executed, approved and filed according to law (Code, 1896, § 3089; Code, 1886, § 275), including those conferred by sections 300 and 286 of Code of 1886 (§§ 3132 and 3118 of Code of 1896) upon sureties among themselves.

Nor is the objection to the dismissal of the bill as to two of the sureties who paid to complainant their proportion of the debt well taken. The liability of appellant, Carter, was not thereby increased.

[Lagomarsino v. Crowe et al.]

We have considered the objections raised by the demurrer to the bill which have been argued, and we find no error in the decree.

Affirmed.

Lagomarsino v. Crowe et al.

Bill in Equity for an Injunction.

1. In inaction, when owner of adjoining lot can not be restrained from erecting a building thereon.-The purchasers of one of two adjoining lots in a city, upon making the purchase entered into an agreement which recited that for and in consideration of the sale of said lot to them by the person who was the owner of said two adjoining lots, they agreed and bound themselves to erect on said lot so purchased by them "a three story brick metal roof building at least one hundred feet long," and further agreed and bound themselves "to erect the wall on the southern boundary of said lot (which was the northern boundary line of the adjoining lot), with apertures for joists to be used by the owner" of the adjoining lot, at any time the owner of said adjoining lot "may choose to erect the building thereon without cost to the owner of said lot for said wall, for a building of like dimensions." This agreement was signed by the purchasers alone and not by the vendor. The purchasers erected the building stipulated for on said lot, but the southern wall of said building was not erected wholly or even mainly on said lot, but a greater portion of said wall was erected on the said odjoining lot. Held: That neither of said purchasers nor those claiming under them could enjoin the owner of the adjoining lot from erecting a two story brick building on said adjoining lot and joining it to the southern wall erected by said purchasers.

APPEAL from the Chancery Court of Colbert. Heard before the Hon. WILLIAM H. SIMPSON. The bill in this case was filed by the appellant, John P. Lagomarsino, against the appellee, Belle T. Crowe and her husband, James R. Crow; and prayed to have the defendant enjoined from erecting on lot 14 in block 71, in the city of Sheffield, which adjoined a lot owned

[Lagomarsino v. Crowe et al.]

by the complainant, a two story brick wall in the course of construction.

It was averred in the bill that the complainant had, by purchase, become the owner of lot 13 in block 71, in the city of Sheffield, which had been sold to Davega Bros. by Horace Ware, and that the respondent, Belle T. Crowe, had become the owner, by purchase from Horace Ware, of lot 14 in block 71. An agreement entered into by Davega Bros. at the time of the purchase of lot 13, and which is copied in the opinion, is made the basis of the ground of the relief prayed for.

On the filing of the bill a temporary injunction was issued. The respondents answered the bill and moved to dismiss the bill for the want of equity. They also moved to dissolve the injunction upon the denials of the answer. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

On the submission of the cause on the motion to dismiss the bill and to dissolve the injunction, the court rendered a decree overruling the motion to dismiss the bill, and sustaining the motion to dissolve the injunction. From this decree dissolving the injunction the complainant appeals, and assigns the rendition threeof

as error.

THOS. R. ROULHAC, for appellant, cited Washburn on Easements, 454; Trustees v. Lynch, 70 N. P. 445; 3 Pom. Equity, § 1295; Bisquay v. Jeunelot, 10 Ala. 245; Antomarchi v. Russell, 63 Ala. 358; McMinn v. Karter, 116 Ala. 390; Graves v. Smith, 87 Ala. 451; Preiss v. Parker, 67 Ala. 508; Jackson v. Jackson, 84 Ala. 345; Rembert v. Brown, 17 Ala. 667; Miller v. Bates, 35 Ala. 580; 2 High on Inj., §§ 1472, 1481; 1 Beach on Inj., §§ 309, 313; Farris v. Houston, 78 Ala. 250; Columbus, etc., v. Witherow, 82 Ala. 190; Armstrong v. Potts, 23 N. J. Eq., 92; Steamboat Co. v. Transp. Co., 28 Fla. 387, 419-20; 1 Pom. Eq. Jur., § 390; 2 Pom. Eq. Jur., § 818; 6 Lawson Rights, Rem. and Pr., § 2701, p. 4409; Roberts v. North Pac. Co., 158 U. S. 77; Keokuk v. Scotland, 152 U. S. 515; Forney v. Calhoun County, 84 Ala.