Calhoun v. Johnson

4 Ky. Op. 162, 1870 Ky. LEXIS 305

• Court: Court of Appeals of Kentucky
• Decided: November 2, 1870
• Status: Published

Opinion

Opinion op the Court by

Judge Kobertson :

As Mrs. Shrader was a stranger'to the guardian’s bond by her husband as principal and Calhoun, Johnson and others as sureties, her mortgage of her estate to indemnify Calhoun alone against his own contributory liability does not enure to the benefit of his sureties as the like mortgage of the guardian’s estate might have done in equity.

Calhoun alone can enforce that mortgage for his own indemnity against ultimate loss which may result after final contribution among all the co-sureties, until such adjustment showing the loss for which aloné the mortgage assures indemnity, he cannot enforce that security.

As no such final contribution is shown to have been completed among the co-sureties of their insolvent principal and therefore Calhoun’s ultimate loss has not been ascertained, the circuit court erred in adjudging to- the appellee Johnson, as one of the co-sureties the whole fund deposited in court, by another co-surety. That fund should not be disturbed until full and final contribution shall have fixed Calhoun’s loss, and then, and not sooner, he may proceed on his mortgage.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings for adjusting the contributory liabilities of all the sureties.

Owen, for appellant. Johnson, for appellee.